ORMSBEE v. Richter & Ratner Contracting Corp. et al., Defendants–Respondents–Appellants. (2022)

Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered June 25, 2021, which, insofar as appealed from as limited by the briefs, denied plaintiffs’ motion for partial summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23–2.1(a)(1), and granted defendants Richter & Ratner Contracting Corp. and Jazz at Lincoln Center, Inc.’s motion for summary judgment dismissing the Labor Law § 240(1) claim as against them and denied the motion as to the Labor Law § 241(6) claim predicated on Industrial Code §§ 23–1.5(c)(3) and 23–6.1(b), unanimously affirmed, without costs.

Plaintiff John Ormsbee (plaintiff) was lifting the lid of a gang box at a construction site to retrieve tools and materials when the lid fell suddenly, causing injury to his shoulders, although the lid did not strike any part of his body.

Plaintiff's lifting of the lid of the gang box does not qualify as a covered activity under Labor Law § 240(1).  There was no “significant risk inherent in [it] because of the relative elevation at which [it] [had to] be performed or at which materials or loads [had to] be positioned or secured” (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991]).  Plaintiff was standing at the same level as the gang box when the lid fell, and the lid did not strike him.  The lifting of the lid posed the usual and ordinary dangers of a construction site (see generally Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500–501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993]).

Industrial Code (12 NYCRR) § 23–2.1(a)(1) is not applicable as a predicate for the Labor Law § 241(6) claim, since plaintiff's injury occurred in an open work area, not in a “passageway, hallway, stairway, or other thoroughfare” (see Guallpa v. Leon D. DeMatteis Constr. Corp., 121 A.D.3d 416, 419, 997 N.Y.S.2d 1 [1st Dept. 2014]).

Industrial Code § 23–1.5(c)(3), which requires that all devices, safeguards, and equipment be kept in sound and operable condition and be repaired or replaced immediately if damaged, is applicable, since it is undisputed that the hydraulic pumps in the gang box that were intended to make opening and closing the lid easier were not functional at the time of plaintiff's accident.

Dismissal of the Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23–6.1(b) was correctly denied, as defendants raised the argument for the first time in their reply papers (see Castellano v. Ann/Nassau Realty LLC, 199 A.D.3d 558, 559, 159 N.Y.S.3d 25 [1st Dept. 2021]).