Jacobs v. March Constr./Consulting

Opinion

Jacobs v March Constr./Consulting

2026 NY Slip Op 05292

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Lillian Jacobs, appellant,

v

March Construction/Consulting, et al., respondents, et al., defendant (and a third-party action).

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-09020, (Index No. 506935/21)

Colleen D. Duffy, J.P.

Paul Wooten

Laurence L. Love

Susan Quirk, JJ.

Liakas Law, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jack W. Lockwood II], of counsel), for appellant.

Coffey Modica LLP, Tarrytown, NY (John Diffley of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated April 17, 2024. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon a violation of 12 NYCRR 23-1.7(b)(1)(i) insofar as asserted against the defendants March Construction/Consulting and South Conduit Property Owner, LLC.

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

The plaintiff commenced this action against, among others, the defendants South Conduit Property Owner, LLC (hereinafter South Conduit), and March Construction/Consulting (hereinafter March Construction and, together with South Conduit, the defendants) to recover damages for personal injuries the plaintiff alleged that she sustained while working at a construction site owned by South Conduit and managed by March Construction. According to the complaint, at the time of the incident the plaintiff was working at the construction site cleaning a parking area. While sweeping on the ground floor, she saw a piece of wood that she believed was debris, picked it up, unknowingly uncovering an approximately 10-foot deep hole, and fell into the hole, sustaining injuries. The plaintiff alleged, inter alia, that the defendants violated Labor Law § 240(1) and 241(6), predicated upon a violation of 12 NYCRR 23-1.7(b)(1)(i).

The plaintiff moved, among other things, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon a violation of 12 NYCRR 23-1.7(b)(1)(i) insofar as asserted against the defendants. The defendants opposed. In an order dated April 17, 2024, the Supreme Court, inter alia, denied those branches of the plaintiff's motion. The plaintiff appeals.

"Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in [*2]elevated work sites" (Guaman v 178 Ct. St., LLC, 200 AD3d 655, 657). Here, although the plaintiff met her prima facie burden of establishing a violation of Labor Law § 240(1) (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287; Bascombe v West 44th St. Hotel, LLC, 124 AD3d 812, 813), the defendants raised a triable issue of fact. In opposition, the defendants submitted evidence that the hole at issue was covered by a cover consisting of "four pieces of roughcut timber, 2-inches thick, 10-inches wide, approximately three-feet long, and weighing about fifty pounds," marked with the word "HOLE" in orange paint, and secured with braces, which was lying flat on top of the hole prior to the plaintiff's fall. The defendants' submissions also indicated that the plaintiff was instructed to only clean up loose items of garbage and not to touch construction material. These submissions were sufficient to raise a triable issue of fact as to whether the plaintiff's conduct was the sole proximate cause of her injuries (see Bascombe v West 44th St. Hotel, LLC, 124 AD3d at 813; Yedynak v Citnalta Constr. Corp., 22 AD3d 840, 841).

"Labor Law § 241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Argueta v Hall & Wright, LLC, 230 AD3d 1200, 1201 [internal quotation marks omitted]). "'To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that the injuries allegedly sustained were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'" (Montes-Vidal v New York State Thruway Auth., 238 AD3d 1131, 1133, quoting Sanchez v BBL Constr. Servs., LLC, 202 AD3d 847, 850).

12 NYCRR 23-1.7(b)(1)(i) mandates, in relevant part, that "[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing." Here, the evidence submitted by the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability with respect to so much of the Labor Law § 241(6) cause of action as was predicated upon a violation of 12 NYCRR 23-1.7(b)(1)(i). In opposition, however, the defendants raised a triable issue of fact (see Martinez v 281 Broadway Holdings, LLC, 183 AD3d 716, 719).

Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon a violation of 12 NYCRR 23-1.7(b)(1)(i) insofar as asserted against the defendants.

In light of this determination, we need not reach the parties' remaining contentions.

DUFFY, J.P., WOOTEN, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court