In Mutadir v. 80-90 Maiden Lane Del LLC, a construction accident case, the Appellate Division, First Department modified a lower court order and reinstated plaintiff’s Labor Law § 240(1) claim, but affirmed the dismissal of plaintiff’s Labor Law § 241(6), common-law negligence, and Labor Law § 200 claims.
Plaintiff, a carpenter employed by nonparty Gristedes, injured his wrist when the milk crates upon which was standing to install “slot boards” that were to be used to support shelves on the interior walls of the property, shifted and caused him to fall to the ground. Defendants were the owner and managing agent of the property and had entered into a lease with Gristedes, which required Gristedes to convert the premises into a supermarket. Plaintiff alleged that prior to performing his work he unsuccessfully looked for a ladder to use and was directed by the acting foreman to use the milk crates.
Labor Law § 240(1)
Plaintiff was entitled to summary judgment (on the issue of liability) on his Labor Law § 240(1) claim, since his “accident involved an elevation-related risk and his injuries were proximately caused by the failure to provide him with proper protection as required by section 240(1).”
It rejected defendants’ argument to the contrary:
Defendants’ claim that ladders were available on the site is conclusory and fails to raise an issue of fact. The sole evidentiary support for defendants’ argument was an affidavit from an individual who claimed that he was working for Gristedes at the construction site and that there more than enough ladders available for plaintiff’s work. Even if admissible, the affidavit failed to raise a triable issue as to whether plaintiff was the sole proximate cause of his injuries since it does not indicate that plaintiff knew that there were ladders available at the site and that he was expected to use them.
In addition, defendants’ “lack of notice or control over plaintiff’s work is not dispositive of their liability under Labor Law § 240(1)” since “[t]he lease defendants entered into with Gristedes, which required Gristedes to perform substantial demolition and construction work on the leased premises, provides a sufficient ‘nexus’ for imposing liability.”
The court also held that plaintiff’s work at the time of the accident was protected by Labor Law § 240(1), which by its terms applies only to the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure”:
[P]laintiff’s work at the time of his accident was protected by Labor Law § 240(1). The court below improperly “isolate[d] the moment of injury and ignore[d] the general context of the work” (Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 ). Even assuming, without deciding, that the installation of “slot boards” could not be considering “altering” within the meaning of section 240(1), a “confluence of factors” brings plaintiff’s activity within the statute. Plaintiff was employed by a company that was contractually bound by its lease to undertake activity enumerated in section 240(1), including “demolition,” “erection,” and “altering.” Furthermore, plaintiff had worked as a carpenter at the same site for three months, during which time his team demolished and reconstructed the internal configuration of the building. There was no competent evidence in the record supporting defendants’ contention that all enumerated activity had been completed at the time of the accident.
Labor Law § 241(6)
The court, however, agreed that the lower court properly dismissed plaintiff’s Labor Law § 241(6) claims, which were based on Industrial Code (12 NYCRR) 23-1.22(c) and 12 NYCRR 23-5.1(c) and (d). Neither regulation provided an appropriate predicate for a Labor Law § 241(6) claim:
Section 23-1.22(c) sets safety standards for platforms used to transport vehicular and pedestrian traffic, and is inapplicable to the milk crates on which plaintiff stood. Furthermore, section 23-5.1(c) is insufficiently specific to support a Labor Law § 241(6) claim and, in any event, section 23-5.1(c) and (d) are inapplicable because plaintiff was not working on a scaffold at the time of his accident.
Labor Law § 200
Finally, the court held that the trial court properly dismissed plaintiff’s common-law negligence and Labor Law § 200 claims, since “defendants did not exercise supervision or control over plaintiff’s work.” Moreover: “Although defendants’ representative visited the construction site on occasion, there is no evidence that he ever gave specific instructions to plaintiff or his employer on how to do the work.”