In a recent decision, Piedra v. 111 West 57th Property Owner, LLC, et al., 2023 NY Slip Op 04737 (1st Dep’t 2023), the Appellate Division, First Department affirmed the lower Court’s decision granting Plaintiff’s motion for summary judgment on liability on his Labor Law § 241(6) claim, which was predicated on 12 N.Y.C.R.R. § 23-1.7(e)(2). 

I. Brief Recitation of Facts and Procedural History

Plaintiff alleges that he was injured during the course of his employment in the construction of a new building as he descended an interior metal staircase that had not yet been formed (covered) with concrete. As he stepped onto the second step of the staircase, his foot slipped on a loose piece of wood, causing him to fall approximately six (6) or seven (7) steps. 

At the conclusion of discovery, plaintiff moved for summary judgment only on his Labor Law § 241(6) claim which was predicated, inter alia, on Industrial Code § 23-1.7(e)(2) (“Tripping and other hazards”).  Plaintiff argued, inter alia, that the staircase constituted a passageway, and the wood created a tripping hazard within the meaning of the statute. 

Defendant opposed the motion, arguing (for the first time on appeal, though it was considered by the Appellate Division) that plaintiff’s deposition testimony was inconsistent and failed to establish plaintiff’s prima facie entitlement to summary judgment.  Defendants relied on plaintiff’s own deposition testimony in which he did not mention wood, or that he slipped or tripped, when he reported the subject incident to his foreman, and relied as well on a gap in treatment of the alleged injury, to detract from plaintiff’s credibility.  A contested incident report was also submitted, stating that plaintiff heard a noise, looked up, and then fell down the stairs. 

II. The Lower Court’s Decision on Plaintiff’s Motion

In its decision, Supreme Court, New York County, granted plaintiff’s motion, reasoning that the staircase, which was the sole access to his work area, was a “passageway” under the statute, and that the piece of wood at issue constituted “debris” under the applicable industrial code.  The Court further noted that the defendant failed to raise, in its opposition to the motion, an “integral-to-the-work” defense, in that the wood debris was a residual effect of the construction work being performed. 

The lower Court further held that the defendants’ argument that the stairway hazard was open and obvious was unavailing, as they would not thereby be relieved of the statutory obligation to maintain the workplace in a reasonably safe condition. 

III. The Appellate Division, First Department’s Decision on Defendants’ Appeal

The Appellate Division, First Department affirmed the lower Court’s decision, agreeing that the staircase constituted a passageway, and the wood created a tripping hazard within the meaning of the statute.  The First Department also noted that the defendant failed to submit evidence controverting plaintiff’s account of the accident, which was the only account.  Defendant’s argument regarding plaintiff’s failure to mention the wood, or that he tripped, and the gap in treatment, did not ultimately serve to detract from plaintiff’s credibility or establish inconsistencies that would amount to a failure to establish his prima facie entitlement to summary judgment.

Defendant also submitted photographs of the subject staircase taken a day or more after the subject incident, which, while not representative of the condition of the staircase on the date of the subject incident, depicted debris on the staircase where plaintiff fell. 

Lastly, any argument via a contested incident report that plaintiff heard a noise and looked up, and then fell down the stairs, speaks to plaintiff’s comparative negligence and does not preclude a liability founded upon a violation of Labor Law § 241(6).  See Rodriguez v. City of New York, 31 N.Y.3d 312, 324-325 (2018). 

IV. Conclusion & Insights

Illustrative here is that Labor Law § 241(6) can present an avenue to summary judgment when plaintiff’s account of the subject incident is the sole account.  Here, the fact that plaintiff did not mention wood, or slipping, in his report of the accident to his employer, as well as the fact that he waited before seeking medical treatment, were effectively explained away by plaintiff’s deposition testimony, and ultimately did not amount to the level of inconsistency necessary to impact plaintiff’s credibility; a higher level of which could have, presumably, resulted in the denial of plaintiff’s motion for summary judgment.  Here, an arguably incomplete recitation of the incident, in comparison to plaintiff’s deposition testimony, is not an “inconsistency” rising to the level of damaging plaintiff’s credibility for the purposes of summary judgment.

The First Department then took the opportunity to remind us of the Rodriguez decision, which established that plaintiff’s comparative negligence does not preclude a finding of liability. 

It is also notable that plaintiff did not move for summary judgment under Labor Law § 240(1), as an argument could be made that plaintiff fell from a significant elevation differential when he fell approximately six (6) or seven (7) steps.

The Piedra decision can be found here.

For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.

This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers.  This publication is in no way intended to provide legal advice or to create an attorney-client relationship.  All Rights Reserved.  This article may not be reprinted without the express written permission of McCormick & Priore, P.C.