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Supreme Court, Appellate Division, First Department, New York.

Hamid MEHMEDAGIC, et al., Plaintiffs-Respondents, v. NEW YORK UNIVERSITY MEDICAL CENTER, Defendant-Respondent.

NEW YORK UNIVERSITY s/h/a New York University Medical Center, Third-Party Plaintiff-Respondent-Appellant, v. ERECTRA CONSTRUCTION CORP., et al., Third-Party Defendants-Appellants Respondents.

Decided: February 10, 1998

Before ROSENBERGER, J.P., and NARDELLI, RUBIN and TOM, JJ. Andre L. Ferenzo, for plaintiffs-respondents. John P. Harris, for defendant-respondent and third-party plaintiff-respondent-appellant. Neil L. Fishman, for third-party defendants-appellants respondents.

Order, Supreme Court, New York County (Emily Goodman, J.), entered on or about April 2, 1997, which, insofar as appealed from as limited by the briefs, denied defendant and third-party plaintiff's motion for summary judgment dismissing plaintiffs' cause of action under the Labor Law and denied third-party defendant's cross-motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

Issues of fact exist as to whether the employee was injured in the course of construction work on the structure (see, Martin v. Back O'Beyond, 198 A.D.2d 479, 604 N.Y.S.2d 205).   The fixed ladder is arguably covered by Labor Law § 240, since there is some evidence that it was required for access to a roof-top work space (see, Szopinski v. MJ Mechanical Servs., 217 A.D.2d 906, 629 N.Y.S.2d 926, appeal dismissed 87 N.Y.2d 861, 639 N.Y.S.2d 312, 662 N.E.2d 793;  Kirchner v. BRC Human Servs. Corp., 224 A.D.2d 270, 638 N.Y.S.2d 20).  Plaintiffs have satisfied the need for allegation of a specific, concrete provision of the Industrial Code to support a Labor Law § 241(6) cause of action (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82).   We have considered the parties' remaining arguments for affirmative relief and find them to be without merit.


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