O'Brien v One Penn Plaza LLC 2025 NY Slip Op 31163(U) April 8, 2025 Supreme Court, New York County Docket Number: Index No. 159124/2019 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 04/08/2025 04:46 PM INDEX NO. 159124/2019 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/08/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 159124/2019 PAUL O'BRIEN, MOTION DATE 04/04/2025 Plaintiff, MOTION SEQ. NO. 002 -v- ONE PENN PLAZA LLC,AMBASSADOR CONSTRUCTION DECISION + ORDER ON COMPANY, INC., MOTION Defendant. ---------------------------------------------------------------------------------X
ONE PENN PLAZA LLC, AMBASSADOR CONSTRUCTION Third-Party COMPANY, INC. Index No. 595513/2020
Plaintiff,
-against-
ABCO PEERLESS SPRINKLER CORP., ABCO PEERLESS CORPORATION
Defendant. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 105, 106 were read on this motion to/for JUDGMENT - SUMMARY .
Plaintiff’s motion for partial summary judgment is on his Labor Law § 241(6) claim is
granted in part and denied in part.
Background
In this Labor Law action, plaintiff contends that he was working at a construction site
located at One Penn Plaza in Manhattan when he slipped and fell after stepping on a metal
vacuum hose while stepping off the lowest rung of a ladder. Plaintiff was working with his father
(who was also his supervisor) installing sprinkler systems at the time of his accident (NYSCEF
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1 of 6 [* 1] FILED: NEW YORK COUNTY CLERK 04/08/2025 04:46 PM INDEX NO. 159124/2019 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/08/2025
Doc. No. 72 at 42 [plaintiff’s deposition testimony]). He worked for third-party defendant ABCO
Peerless (id. at 51). At the time of the accident, plaintiff testified that he saw debris, such as
ductwork, studs, framing equipment and other items, everywhere (id. at 86). Plaintiff was tasked
with setting up a sprinkler heads in a particular room, which first involved installing pipes for the
sprinklers (id.).
The accident occurred while plaintiff was coming down the ladder after installing a
second piece of pipe (id. at 98). His father was cutting pieces of the pipe and then handed
plaintiff these pieces to be hung (id. at 102). Plaintiff explained that “So I was coming off the
ladder and I stepped off with my left foot and I stepped on something. It went forward. I went
back hard, My upper back and middle back hit the floor hard and my head snapped and, you
know, my head hit the ground with my hard hat on” (id. at 106). “The vacuum hose rolled
forward and I went backwards” (id. at 107).
Discussion
Plaintiff seeks summary judgment on two specific Industrial Code sections cited in
connection with his Labor Law § 241(6) claim.
“The duty to comply with the Commissioner’s safety rules, which are set out in the
Industrial Code (12 NYCRR), is nondelegable. In order to support a claim under section 241(6). .
. the particular provision relied upon by a plaintiff must mandate compliance with concrete
specifications and not simply declare general safety standards or reiterate common-law
principles” (Misicki v Caradonna, 12 NY3d 511, 515, 882 NYS2d 375 [2009]). “The regulation
must also be applicable to the facts and be the proximate cause of the plaintiff’s injury” (Buckley
v Columbia Grammar and Preparatory, 44 AD3d 263, 271, 841 NYS2d 249 [1st Dept 2007]).
159124/2019 O'BRIEN, PAUL vs. ONE PENN PLAZA LLC Page 2 of 6 Motion No. 002
2 of 6 [* 2] FILED: NEW YORK COUNTY CLERK 04/08/2025 04:46 PM INDEX NO. 159124/2019 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/08/2025
“Section 241(6) subjects owners and contractors to liability for failing to adhere to
required safety standards whether or not they themselves are negligent. Supervision of the work,
control of the worksite, or actual or constructive notice of a violation of the Industrial Code are
not necessary to impose vicarious liability against owners and general contractors, so long as
some actor in the construction chain was negligent” (Leonard v City of New York, 216 AD3d 51,
55-56, 188 NYS3d 471 [1st Dept 2023]).
Plaintiff points to Industrial Code Sections 21-1.7(d) and (e)(2). He argues that there
were debris and materials strewn about the floor and that these items were not integral to his
work setting up the sprinkler system. Plaintiff insists that there is no evidence that any worker or
trade was using the metal hose upon which plaintiff tripped or that there was another worker in
the area at the time of the accident. He claims that defendant Ambassador Construction
Company, Inc. (“Ambassador”) was the general contractor and testified that he thought the
vacuum hose was being used by Ambassador’s laborers (NYSCEF Doc. No. 72 at 43-44).
Plaintiff added that he had seen, prior to the accident, Ambassador laborers using shop-vacs to
suck up water and gravel (id. at 229).
In opposition, defendants (the owner and the general contractor) contend that plaintiff’s
motion failed to comply with procedural requirements, namely that he did not include a
statement of material facts and that he did not annex the pleadings to his motion. Defendants
claim that the other Industrial Code sections cited by plaintiff during discovery should be
deemed abandoned as he only moved with respect to two sections in this motion.
The Industrial Code Sections
22 NYCRR 23-1.7(d) provides that “Slipping hazards. Employers shall not suffer or
permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated
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3 of 6 [* 3] FILED: NEW YORK COUNTY CLERK 04/08/2025 04:46 PM INDEX NO. 159124/2019 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/08/2025
working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign
substance which may cause slippery footing shall be removed, sanded or covered to provide safe
footing.”
Defendants claim that this section is inapplicable because plaintiff’s accident did not
occur in a floor, passageway or any other location cited in this section. They also claim that there
is no evidence that plaintiff encountered a slippery condition. The Court agrees—plaintiff’s
version of events is that he stepped down onto a hose which caused him to lose his balance. In
this Court’s view, a hose does not constitute a slippery condition as contemplated by the statute.
22 NYCRR 23-1.7(e)(2) provides that: “(2) Working areas. The parts of floors, platforms
and similar areas where persons work or pass shall be kept free from accumulations of dirt and
debris and from scattered tools and materials and from sharp projections insofar as may be
consistent with the work being performed.”
The Court finds that this section is applicable, and that plaintiff is entitled to summary
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O'Brien v One Penn Plaza LLC 2025 NY Slip Op 31163(U) April 8, 2025 Supreme Court, New York County Docket Number: Index No. 159124/2019 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 04/08/2025 04:46 PM INDEX NO. 159124/2019 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/08/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 159124/2019 PAUL O'BRIEN, MOTION DATE 04/04/2025 Plaintiff, MOTION SEQ. NO. 002 -v- ONE PENN PLAZA LLC,AMBASSADOR CONSTRUCTION DECISION + ORDER ON COMPANY, INC., MOTION Defendant. ---------------------------------------------------------------------------------X
ONE PENN PLAZA LLC, AMBASSADOR CONSTRUCTION Third-Party COMPANY, INC. Index No. 595513/2020
Plaintiff,
-against-
ABCO PEERLESS SPRINKLER CORP., ABCO PEERLESS CORPORATION
Defendant. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 105, 106 were read on this motion to/for JUDGMENT - SUMMARY .
Plaintiff’s motion for partial summary judgment is on his Labor Law § 241(6) claim is
granted in part and denied in part.
Background
In this Labor Law action, plaintiff contends that he was working at a construction site
located at One Penn Plaza in Manhattan when he slipped and fell after stepping on a metal
vacuum hose while stepping off the lowest rung of a ladder. Plaintiff was working with his father
(who was also his supervisor) installing sprinkler systems at the time of his accident (NYSCEF
159124/2019 O'BRIEN, PAUL vs. ONE PENN PLAZA LLC Page 1 of 6 Motion No. 002
1 of 6 [* 1] FILED: NEW YORK COUNTY CLERK 04/08/2025 04:46 PM INDEX NO. 159124/2019 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/08/2025
Doc. No. 72 at 42 [plaintiff’s deposition testimony]). He worked for third-party defendant ABCO
Peerless (id. at 51). At the time of the accident, plaintiff testified that he saw debris, such as
ductwork, studs, framing equipment and other items, everywhere (id. at 86). Plaintiff was tasked
with setting up a sprinkler heads in a particular room, which first involved installing pipes for the
sprinklers (id.).
The accident occurred while plaintiff was coming down the ladder after installing a
second piece of pipe (id. at 98). His father was cutting pieces of the pipe and then handed
plaintiff these pieces to be hung (id. at 102). Plaintiff explained that “So I was coming off the
ladder and I stepped off with my left foot and I stepped on something. It went forward. I went
back hard, My upper back and middle back hit the floor hard and my head snapped and, you
know, my head hit the ground with my hard hat on” (id. at 106). “The vacuum hose rolled
forward and I went backwards” (id. at 107).
Discussion
Plaintiff seeks summary judgment on two specific Industrial Code sections cited in
connection with his Labor Law § 241(6) claim.
“The duty to comply with the Commissioner’s safety rules, which are set out in the
Industrial Code (12 NYCRR), is nondelegable. In order to support a claim under section 241(6). .
. the particular provision relied upon by a plaintiff must mandate compliance with concrete
specifications and not simply declare general safety standards or reiterate common-law
principles” (Misicki v Caradonna, 12 NY3d 511, 515, 882 NYS2d 375 [2009]). “The regulation
must also be applicable to the facts and be the proximate cause of the plaintiff’s injury” (Buckley
v Columbia Grammar and Preparatory, 44 AD3d 263, 271, 841 NYS2d 249 [1st Dept 2007]).
159124/2019 O'BRIEN, PAUL vs. ONE PENN PLAZA LLC Page 2 of 6 Motion No. 002
2 of 6 [* 2] FILED: NEW YORK COUNTY CLERK 04/08/2025 04:46 PM INDEX NO. 159124/2019 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/08/2025
“Section 241(6) subjects owners and contractors to liability for failing to adhere to
required safety standards whether or not they themselves are negligent. Supervision of the work,
control of the worksite, or actual or constructive notice of a violation of the Industrial Code are
not necessary to impose vicarious liability against owners and general contractors, so long as
some actor in the construction chain was negligent” (Leonard v City of New York, 216 AD3d 51,
55-56, 188 NYS3d 471 [1st Dept 2023]).
Plaintiff points to Industrial Code Sections 21-1.7(d) and (e)(2). He argues that there
were debris and materials strewn about the floor and that these items were not integral to his
work setting up the sprinkler system. Plaintiff insists that there is no evidence that any worker or
trade was using the metal hose upon which plaintiff tripped or that there was another worker in
the area at the time of the accident. He claims that defendant Ambassador Construction
Company, Inc. (“Ambassador”) was the general contractor and testified that he thought the
vacuum hose was being used by Ambassador’s laborers (NYSCEF Doc. No. 72 at 43-44).
Plaintiff added that he had seen, prior to the accident, Ambassador laborers using shop-vacs to
suck up water and gravel (id. at 229).
In opposition, defendants (the owner and the general contractor) contend that plaintiff’s
motion failed to comply with procedural requirements, namely that he did not include a
statement of material facts and that he did not annex the pleadings to his motion. Defendants
claim that the other Industrial Code sections cited by plaintiff during discovery should be
deemed abandoned as he only moved with respect to two sections in this motion.
The Industrial Code Sections
22 NYCRR 23-1.7(d) provides that “Slipping hazards. Employers shall not suffer or
permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated
159124/2019 O'BRIEN, PAUL vs. ONE PENN PLAZA LLC Page 3 of 6 Motion No. 002
3 of 6 [* 3] FILED: NEW YORK COUNTY CLERK 04/08/2025 04:46 PM INDEX NO. 159124/2019 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/08/2025
working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign
substance which may cause slippery footing shall be removed, sanded or covered to provide safe
footing.”
Defendants claim that this section is inapplicable because plaintiff’s accident did not
occur in a floor, passageway or any other location cited in this section. They also claim that there
is no evidence that plaintiff encountered a slippery condition. The Court agrees—plaintiff’s
version of events is that he stepped down onto a hose which caused him to lose his balance. In
this Court’s view, a hose does not constitute a slippery condition as contemplated by the statute.
22 NYCRR 23-1.7(e)(2) provides that: “(2) Working areas. The parts of floors, platforms
and similar areas where persons work or pass shall be kept free from accumulations of dirt and
debris and from scattered tools and materials and from sharp projections insofar as may be
consistent with the work being performed.”
The Court finds that this section is applicable, and that plaintiff is entitled to summary
judgment on liability. Plaintiff’s uncontroverted testimony is that he fell backwards when
stepped down onto a hose, i.e. scattered tools and materials, while performing his work. “That
plaintiff slipped, rather than tripped . . . does not render 12 NYCRR 23-1.7 (e) (2) . . .
inapplicable to his case” (Serrano v Consol. Edison Co. of New York Inc., 146 AD3d 405, 406,
44 NYS3d 392 [1st Dept 2017] [internal quotations and citations omitted]). Defendants’
contention that the accident did not occur in a passageway is accurate, but this code section also
provides protections for workers performing their tasks (id. [granting summary judgment where
plaintiff slipped and fell on debris while painting exposed structural steel]). Moreover, the statute
is not limited to injuries arising out of dirt and debris as it specifically cites “scattered tools and
materials.” Defendants did not cite any binding caselaw for the proposition that the vacuum hose
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that caused plaintiff’s injuries requires this cause of action to fall outside the reach of this
Industrial Code section.
Other Issues
The Court rejects defendants’ assertion that plaintiff’s failure to submit a statement of
material facts compels the Court to deny the instant motion. “The applicable rule permits a court
to require that parties submit a separate statement of material facts with any motion for summary
judgment, but it does not obligate a court to impose such a requirement” (Taveras v Inc. Vil. of
Freeport, 225 AD3d 822, 823, 207 NYS3d 620 [2d Dept 2024]). In fact, the rule states that “the
court may direct that there shall be annexed to the notice of motion a separate, short and concise
statement, in numbered paragraphs, of the material facts as to which the moving party contends
there is no genuine issue to be tried” (22 NYCRR 202.8-g [emphasis added]). The Court did not
direct plaintiff to submit such a statement here.
Plaintiff’s failure to annex a copy of the pleadings is also not fatal to his motion. As this
is an e-filed case, the pleadings are readily accessible both to the Court and all parties on
NYSCEF.
And, finally, the Court denies the request that the other Industrial Code sections not cited
by plaintiff in his motion “be deemed abandoned.” The fact is that defendants did not cross-move
for summary judgment dismissing these claims. And plaintiff was not required to make a motion
on every single Industrial Code section. There is no basis for defendants’ claim that the failure to
seek summary judgment on every single Industrial Code section somehow compels the Court to
dismiss those remaining claims as abandoned.
Accordingly, it is hereby
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ORDERED that plaintiff’s motion for summary judgment is granted only to the extent
that he is awarded summary judgment on liability on his Labor Law § 241(6) claim premised on
23-1.7(e)(2) and denied with respect to the remaining relief requested.
4/8/2025 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
159124/2019 O'BRIEN, PAUL vs. ONE PENN PLAZA LLC Page 6 of 6 Motion No. 002
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