In Palacios v. 29th St. Apts., LLC, the Appellate Division, Second Department dismissed plaintiff worker’s claims under Labor Law §§ 200, 240(1), and 241(6).
The court described the accident as follows:
The plaintiff, who was assigned to work on the roof of an apartment building …, was injured when, instead of using the interior staircase of the building as he had done previously, he chose to use the fire escape as a “shortcut” to the ground from the roof. He alleged that when he was on the ladder that led from the first floor fire escape platform to the ground, the ladder moved, causing him to lose his balance and fall off. Neither the plaintiff’s supervisor nor anyone associated with the appellants had instructed him to use the fire escape as a means of passage between the ground and his assigned work station on the roof.
First, the court dismissed plaintiff’s Labor Law § 200 and common law negligence claims:
Where, as here, a plaintiff contends that an accident occurred because a dangerous condition existed on the premises where work was being undertaken, an owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence. In this case, the appellants made a prima facie showing that they neither created the allegedly dangerous condition nor had actual or constructive notice of its existence. As the plaintiff failed to raise a triable issue of fact in opposition …, the [trial court] should have granted that branch of the appellants’ motion which was for summary judgment dismissing these causes of action insofar as asserted against them.
Next, the court dismissed plaintiff’s Labor Law § 240(1) claim:
[I]t is apparent that the fire escape was not being utilized as a ladder, scaffold, hoist, or other safety device for the benefit of the injured plaintiff in his work. Rather, the plaintiff was attempting to use it as a passageway at the worksite and, therefore, it was not within the purview of Labor Law § 240(1).
Finally, the court dismissed plaintiff’s claim under Labor Law § 241(6), finding that none of the alleged statutory violations of the Industrial Code (which must be alleged and proved to establish a violation of this section) were applicable.