RILEY v. MEMORIAL SLOAN KETTERING CANCER CENTER (2026)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about January 3, 2025, which, to the extent appealed from as limited by the briefs, denied the motions of defendants Memorial Sloan–Kettering Cancer Center (David H. Koch Center) (MSK) and JGN Construction Corp. for summary judgment dismissing the Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) § 23–1.7(d) and the common-law negligence and Labor Law § 200 claims as against MSK, granted the motions of MSK and JGN for summary judgment dismissing the Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) 23–1.7(e), (f) and the Labor Law § 240(1) claim, denied plaintiff's motion for summary judgment on liability on the Labor Law §§ 240(1) and 241(6) claims, and denied the motion of third-party defendant ADCO Electrical Corp. for summary judgment dismissing JGN's claims for contractual and common-law indemnification and contribution, unanimously modified, on the law, to grant plaintiff's motion for summary judgment on liability on the Labor Law § 240(1) claim, and, upon a search of the record, conditionally grant JGN contractual indemnification from ADCO, and otherwise affirmed, without costs.

Supreme Court should have granted plaintiff's motion for summary judgment on liability on the Labor Law § 240(1) claim.  The statute protects a worker from gravity-related hazards posed by a permanent stairway that “provided the sole means of access to the floors of the building” where the worker was working (Gory v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 A.D.3d 550, 550, 979 N.Y.S.2d 314 [1st Dept 2014] ).  However, the issue of whether a stairway is the sole means of access should not be construed so strictly as to “preclude recovery merely because plaintiff had an alternative means to descend from his work area, especially when that alternative route may have seemed more dangerous than the stairs plaintiff did utilize” (Ramirez v. Shoats, 78 A.D.3d 515, 517, 911 N.Y.S.2d 310 [1st Dept 2010];  see also Waldron v. City of New York, 2020 N.Y. Slip Op 34055U at *9–10, 2020 WL 7315593 [Sup Ct, N.Y. County 2020], affd 203 A.D.3d 565, 162 N.Y.S.3d 700 [1st Dept 2022] ).  Here, the only other staircase available to plaintiff at the worksite would have required him to access a stairway used by hospital patients during the height of the COVID–19 pandemic, which he was instructed not to use.  As a result, under these facts, the purported alternative staircase did not present a viable means of egress for plaintiff, and the staircase plaintiff used was his sole means of access to his work area (see DaSilva v. Toll GC LLC, 224 A.D.3d 540, 541, 205 N.Y.S.3d 363 [1st Dept 2024] ).  Moreover, the stairs were defective in that the treads were worn out or missing.

We have considered and rejected JGN's and MSK's arguments concerning the Labor Law § 240(1) claim, including the argument that the statute does not cover permanent staircases (see Ramirez, 78 A.D.3d at 517, 911 N.Y.S.2d 310 [rejecting the proposition “that a permanently installed structure used as a passageway cannot be a statutory safety device”] ).  As we recently explained, “permanent staircases are not categorically excluded from Labor Law 240(1) coverage,” and will qualify as a safety device under the Labor Law where the staircase is the sole means accessing the plaintiff's work area (Calix v Union Theol.  Seminary in the City of N.Y., 247 A.D.3d 519, 520 [1st Dept 2026], citing DaSilva, 224 A.D.3d at 541, 205 N.Y.S.3d 363 ).

In rejecting this premise, Supreme Court improperly concluded that this principle applies only in situations where the plaintiff was required to work on the staircase upon which he fell (see e.g Conlon v. Carnegie Hall Socy., Inc. 159 A.D.3d 655, 655, 70 N.Y.S.3d 833 [1st Dept 2018] ).  This conclusion is not in line with our most recent caselaw.  In Solarte v. Brearley School, for example, this Court found that defendants were susceptible to a Labor Law 240(1) claim where the plaintiff had fallen down a permanent staircase which was the only means of access to the sealed-off area where he was performing asbestos work (238 A.D.3d 541, 542, 234 N.Y.S.3d 178 [1st Dept 2025];  see also Calix, 247 A.D.3d at 520, 255 N.Y.S.3d 32).  Similarly, in Rivas v Nestle Realty Holding Corp, 188 A.D.3d 430, 430, 131 N.Y.S.3d 871 [1st Dept 2020] ), we found that defendants had failed to provide plaintiff with a proper elevation-related safety device where he had fallen on a newly constructed stairway leading to an elevated deck where he was to perform his work.

Supreme Court's reliance on the dissent in Ramirez for its conclusion that a plaintiff using a permanent staircase as a “passageway” will not give rise to Labor Law 240(1) liability is also misplaced (see Ramirez, 78 A.D.3d at 518– 519, 911 N.Y.S.2d 310 [Andrias and McGuire, JJ., dissenting] ).  The Ramirez majority properly found that the dissent's conclusion was “simply incorrect” and based on an “erroneous premise” (78 A.D.3d at 517, 911 N.Y.S.2d 310, citing Jones v. 414 Equities LLC, 57 A.D.3d 65, 78, 866 N.Y.S.2d 165 [1st Dept 2008] ).  We agree.

Finally, the indemnification clause in the subcontract between JGN and ADCO was triggered because plaintiff's claims arise out of ADCO's work (see O'Connor v. Serge El. Co., 58 N.Y.2d 655, 657, 458 N.Y.S.2d 518, 444 N.E.2d 982 [1982];  Sunun v. Klein, 188 A.D.3d 507, 509, 135 N.Y.S.3d 386 [1st Dept 2020] ).  As plaintiff maintains common-law negligence and Labor Law § 200 claims against JGN, JGN is only conditionally entitled to contractual indemnification to the extent the accident was not proximately caused by its negligence (see Antoniak v. P.S. Marcato El. Co., Inc., 144 A.D.3d 407, 408, 40 N.Y.S.3d 112 [1st Dept 2016] ).  In light of this conditional grant of contractual indemnification, ADCO's arguments concerning the common-law indemnification and contribution claims against it are academic (see Weidtman v. Tremont Renaissance Hous. Dev. Fund Co., Inc., 224 A.D.3d 488, 491–492, 206 N.Y.S.3d 17 [1st Dept 2024] ).