SCHMEISSER v. 685 FIRST REALTY COMPANY LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered July 17, 2024.  The order, insofar as appealed from, denied the plaintiff's motion for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23–1.7(d) and (e)(1).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendants, 685 First Realty Company, LLC (hereinafter 685 First), and Second Ave. Solow Development Corp. (hereinafter Solow), to recover damages for personal injuries he alleged he sustained in November 2020 while working at a construction site owned by 685 First and managed by Solow.  The plaintiff moved for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23–1.7(d) and (e)(1).  The defendants opposed.  In an order entered July 17, 2024, the Supreme Court, inter alia, denied the plaintiff's motion.  The plaintiff appeals.

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (see Gomez v Tilden Estates, LLC, 241 AD3d 791, 795;  Shewprasad v KSK Constr.  Group, LLC, 231 AD3d 762, 763).  To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case (see Gomez v Tilden Estates, LLC, 241 AD3d at 795;  Flores v Fort Green Homes, LLC, 227 AD3d 672, 674).

Here, the plaintiff failed to establish, prima facie, that the defendants violated 12 NYCRR 23–1.7(d), which protects workers from slipping hazards.  In support of his motion, the plaintiff submitted, among other things, a transcript of his deposition testimony, in which he testified, inter alia, that he had previously walked on the pavers at issue at the construction site when they were wet and had not experienced any issues with the pavers becoming slippery when wet.

Accordingly, the plaintiff's deposition testimony raised a triable issue of fact as to whether a slippery condition existed within the meaning of 12 NYCRR 23–1.7(d) (see Miller v R.L.T. Props., Ltd., 206 AD3d 648, 650;  Harasim v Eljin Constr. of N.Y., Inc., 106 AD3d 642, 643).

The plaintiff also failed to meet his prima facie burden of establishing that his injuries were proximately caused by a violation of 12 NYCRR 23–1.7(e)(1), which protects workers from tripping hazards.  The deposition testimony submitted in support of the plaintiff's motion demonstrated that there are triable issues of fact as to whether the broken paver at issue existed for a sufficient length of time such that “someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard,” and that the plaintiff's tripping and falling proximately resulted from such negligence (Rizzuto v L.A. Wenger Contr.  Co., 91 NY2d 343, 351;  see Dyszkiewicz v City of New York, 218 AD3d 546, 550).

Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23–1.7(d) and (e)(1), without regard to the sufficiency of the defendants' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

DUFFY, J.P., GENOVESI, DOWLING and MCCORMACK, JJ., concur.