CABRERA v. Sperry Construction Corp., et al., Defendants-Appellants-Respondents.

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

Jesus CABRERA, Plaintiff-Respondent-Appellant, v. SEA CLIFF WATER CO., et al., Defendants, Sperry Construction Corp., et al., Defendants-Appellants-Respondents.

Decided: April 22, 2004

ANDRIAS, J.P., WILLIAMS, FRIEDMAN, MARLOW, GONZALEZ, JJ. Barrett, Lazar & Lincoln, LLC, Forest Hills (Paul L. Lincoln of counsel), for appellants-respondents. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent-appellant.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 10, 2003, which, to the extent appealed from, granted so much of the cross motion by defendants Sperry Construction and A.L.L. Assocs. for summary judgment dismissing the cause of action based on Labor Law § 240(1), but denied so much of that cross motion as sought summary judgment dismissing the cause of action based on Labor Law § 241(6), unanimously modified, on the law, to the extent of granting summary judgment dismissing the § 241(6) claim, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of defendants Sperry Construction Corp. and A.L.L. Assocs., Inc., dismissing the complaint as against them.

This personal injury action arose out of plaintiff's delivery and preparation of sheet rock, plywood and other building materials to a job site.   Inside the loading dock was a hallway that sloped downward toward an elevator.   Since the sheet rock and plywood did not fit into the elevator, plaintiff and his co-workers had to cut them in the hallway.   When that was completed, plaintiff picked up a broom and swept up the accumulated sheet rock dust and sawdust.   During the course of sweeping, he stumbled and fell, injuring a knee.

The sloped hallway where plaintiff fell did not present an elevation-related risk encompassed by § 240(1) (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82).   The motion court erred, however, in not also dismissing the § 241(6) claim, which requires identification of “a specific Industrial Code provision mandating compliance with concrete specifications” (Reilly v. Newireen Assoc., 303 A.D.2d 214, 218, 756 N.Y.S.2d 192, lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244;  see also Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 349-350, 670 N.Y.S.2d 816, 693 N.E.2d 1068).   Plaintiff cited 12 NYCRR 23-1.7(e)(1) and (2), which require all passageways and work areas to be kept free from accumulations of dirt, debris and materials, as well as any condition that might cause a worker to trip.   The location where plaintiff fell must be considered more of a work area than a passageway (Canning v. Barneys New York, 289 A.D.2d 32, 34, 734 N.Y.S.2d 116), and the sheet rock dust and sawdust appear to have been an unavoidable and inherent result of the cutting of the sheet rock and plywood.   Where plaintiff was in the very process of sweeping up the dust he and his fellow workers had just created, there is no basis for imposing liability against defendants for his slip and fall (Bond v. York Hunter Constr., 270 A.D.2d 112, 113, 705 N.Y.S.2d 40, affd. 95 N.Y.2d 883, 715 N.Y.S.2d 209, 738 N.E.2d 356).