O'Brien v. Port Auth. of N.Y. & N.J.

131 A.D.3d 823, 16 N.Y.S.3d 533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 8, 2015
• Docket: 13616 114853/10
• Status: Published

Opinions

Order, Supreme Court, New York County (Louis B. York, J.), entered July 16, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion and defendants the Port Authority of New York and New Jersey, Tishman Construction Corporation of New York and Atlantic Housing and Scaffolding, LLC’s cross motion for summary judgment on plaintiff’s Labor Law § 240 (1) claim, and granted plaintiff summary judgment on his Labor Law § 241 (6) claim insofar as predicated on a violation of Industrial Code (12 NYCRR) § 23-1.7 (d), modified, on the law, to grant plaintiff’s motion for summary judgment on his section 240 (1) claim, and to deny plaintiff summary judgment on his section 241 (6) claim as predicated on a violation of 12 NYCRR 23-1.7 (d), and otherwise affirmed, without costs.

Plaintiff was working as an operating engineer at the World Trade Center Freedom Tower construction site, responsible for maintaining the welding machines on site. He slipped and fell down a steel staircase while he was attempting to walk down to the supply shanty.

Plaintiff is entitled to partial summary judgment on his Labor Law § 240 (1) claim. As the dissent recognizes, plaintiff was engaged in a covered activity at the time he slipped and fell down the stairs of a temporary tower scaffold. A fall down a temporary staircase is the type of elevation-related risk to which section 240 (1) applies, and the staircase, which had been erected to allow workers access to different levels of the worksite, is a safety device within the meaning of the statute (see McGarry v CVP 1 LLC, 55 AD3d 441 [1st Dept 2008]; Wescott v Shear, 161 AD2d 925 [3d Dept 1990], appeal dismissed 76 NY2d 846 [1990]). As we stated in Ervin v Consolidated Edison of N.Y. (93 AD3d 485, 485 [1st Dept 2012]), involving a worker who fell when the temporary structure he was descending gave way, “It is irrelevant whether the structure constituted a staircase, ramp, or passageway since it was a safety device that failed to afford him proper protection from a gravity-related risk.” We are thus at a loss to comprehend the dissent’s reasoning that although the temporary staircase was a safety device and although it admittedly did not prevent plaintiff’s fall, there is nonetheless a factual issue which would defeat plaintiff’s entitlement to partial summary judgment on his section 240 (1) claim.

The fact that the affidavits of plaintiff’s and defendant’s experts conflict as to the adequacy and safety of the temporary stairs does not preclude summary judgment in plaintiff’s favor. A plaintiff is entitled to partial summary judgment on a section 240 (1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants’ failure to take mandated safety measures to protect him against an elevation-related risk (see Stallone v Plaza Constr. Corp., 95 AD3d 633 [1st Dept 2012]). Plaintiffs expert opined, inter alia, that the stairs showed obvious signs of longstanding use, wear and tear; therefore, a decrease in anti-slip properties was to be expected. Given that it is undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling, plaintiff is entitled to summary judgment, whatever the weather conditions might have been.

The grant of summary judgment on plaintiff’s section 241 (6) claim insofar as it was predicated on a violation of 12 NYCRR 23-1.7 (d) was also in error. Issues of fact exist concerning whether someone within the chain of the construction project had notice of the hazardous condition (see Booth v Seven World Trade Co., L.P., 82 AD3d 499 [1st Dept 2011]).

We have considered the remaining arguments and find them unavailing.

Concur — Renwick, Moskowitz, Richter and Manzanet-Daniels, JJ.