JOHNSON v. LEND LEASE CONSTRUCTION LMB INC (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bernadette Bayne, J.), entered May 4, 2016.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against, among others, the defendant Lend Lease Construction LMB, Inc. (hereinafter Lend Lease), the general contractor and construction manager of a construction project on premises owned by the defendant Columbia University in the City of New York (hereinafter Columbia), to recover damages for violations of Labor Law §§ 200, 240(1), and 241(6), and for common-law negligence arising out of injuries the plaintiff contends he sustained when he was working on the construction project.  At the time of the accident, the plaintiff was employed by nonparty Fresh Meadow Mechanical Corp. as a steamfitter.  According to the plaintiff, he was working at the premises and fell when he attempted to step up onto a rebar grid located 18 inches above a corrugated steel decking, where he had been standing.  The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.  The plaintiff appeals.

The defendants established, prima facie, their entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action.  The defendants submitted evidence that, although the plaintiff's foot slipped through openings in the rebar grid, the openings were too small for a person's body to fall through.  The plaintiff testified at his deposition that his foot could fit through the openings, but not his entire body.  The defendants, therefore, established that the openings of the grid did “ ‘not present an elevation-related hazard to which the protective devices enumerated [in Labor Law § 240(1) ] are designed to apply’ ” (Avila v. Plaza Constr. Corp., 73 A.D.3d 670, 671, 900 N.Y.S.2d 378, quoting Rice v. Board of Educ. of City of N.Y., 302 A.D.2d 578, 580, 755 N.Y.S.2d 419).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The defendants also established, prima facie, their entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action, which was premised upon alleged violations of 12 NYCRR 23–1.7(b)(1) and (d), (e), and (f).  The provision pertaining to “hazardous openings” (12 NYCRR 23–1.7[b][1] ) does not apply to openings that are too small for a worker to completely fall through (see Vitale v. Astoria Energy II, LLC, 138 A.D.3d 981, 983, 30 N.Y.S.3d 213; DeLiso v. State of New York, 69 A.D.3d 786, 787, 892 N.Y.S.2d 533).  The defendants also established that 12 NYCRR 23–1.7(d), (e), and (f) are inapplicable to the facts of this case (see Keener v. Cinalta Constr. Corp., 146 A.D.3d 867, 868, 45 N.Y.S.3d 179; Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 984, 999 N.Y.S.2d 848; Francescon v. Gucci Am., Inc., 105 A.D.3d 503, 504, 964 N.Y.S.2d 8).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The defendants also established, prima facie, their entitlement to judgment as a matter of law dismissing the causes of action to recover damages for violation of Labor Law § 200 and for common-law negligence (see Lopez v. Edge 11211, LLC, 150 A.D.3d 1214, 1216, 56 N.Y.S.3d 187; Messina v. City of New York, 147 A.D.3d 748, 749–750, 46 N.Y.S.3d 174).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The plaintiff's contention that the defendants' motion should have been denied to afford him an opportunity to obtain discovery is without merit, as he did not show that further discovery might lead to relevant evidence (see CPLR 3212[f]; Central Mtge. Co. v. Jahnsen, 150 A.D.3d 661, 665, 56 N.Y.S.3d 107; Reynolds v. Avon Grove Props., 129 A.D.3d 932, 933, 12 N.Y.S.3d 199).

Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for summary judgment dismissing the complaint.

LEVENTHAL, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.