Supreme Court Severs Claims After Parties’ Misstep
It’s important to cover all your bases when moving for summary judgment because, in a recent decision, the Supreme Court, New York County shows us that if you don’t the Court isn’t going to do the work for you.
In Foronjy v. Hewitt School, et al., 2024 NY Slip OP 31756(U), Plaintiff alleges that he was injured during the course of his employment at a construction project located in Manhattan. While working at the subject project, Plaintiff was instructed to provide an electrical outlet in an exterior garden area. The garden area where Plaintiff was working is elevated approximately three feet above a foundation area. As he attempted to exit the garden area, which had a three-foot height differential from the foundation area below, he held on to a partition wall, which gave way, causing him to fall over.
A differing account from an eyewitness stated he saw Plaintiff fall when he went to the edge of the wall of the garden area, and attempted to exit the garden by stepping down to an existing set of concrete steps. Photographs submitted in support of the respective motions showed the steps referenced in the eyewitness’ statement, as well as the garden area where plaintiff was working.
At the conclusion of discovery, the parties moved for summary judgment. Plaintiff moved for summary judgment as to his Labor Law §§ 240(1), 241(6) and 200 claims, as well as common law negligence claims. Defendants moved for summary judgment to dismiss all of plaintiff’s claims outlined supra. Defendants’ motion argued, in essence, that § 240(1) does not apply, the Industrial Code sections relied upon by plaintiff to support the § 241(6) claim were inapplicable, and plaintiff failed to prove a violation of § 200.
As to the Labor Law § 240(1) claim, the Court agreed with defendants, as the steps that plaintiff were attempting to navigate at the time of the accident do not implicate the type of elevation-related risks that § 240(1) was designed to protect against; and the area where plaintiff fell is within the usual and ordinary dangers of a jobsite. The Court granted defendants’ motion for summary judgment as to the § 240(1) claim.
As to the Labor Law § 241(6) claim, the Court initially noted that multiple sections of the Industrial Code relied upon by plaintiff were inapplicable to plaintiff’s accident. As to Section 23-1.7(f) “Vertical Passage”, it requires “stairways, ramps, or runways” to be provided as a “means of access to working levels above or below ground” except where their instillation would inhibit progress of work. The Court noted that because a concrete set of stairs was provided between the levels of the garden and foundation, the provision was not violated, and granted defendants’ motion for summary judgment as to the § 241(6) claim.
Turning to the Labor Law § 200 claim and the common-law negligence claims, the Court began its analysis by noting the two types of § 200 claims and common-law negligence claims – (1) injuries arising from dangerous and defective premises conditions and (2) injuries arising from the manner and means in which the work was performed. As to plaintiff’s claim regarding the “manner and means”, the Court agreed with the defendants’ contention that they only had general supervisory authority at the subject site as general contractor, which is insufficient to establish liability. The Court therefore dismissed the § 200 claim and the common-law negligence claims inasmuch as predicated on a “manner and means” theory of liability.
The Court then notes that none of the parties raised any arguments as to plaintiff’s § 200 claim and common-law negligence claim as predicated on a “defective premises condition” theory of liability. As a result, it severed and dismissed the “manner and means” claim, but declined to dismiss the § 200 and common-law negligence “defective premises condition” claims.
At the time of this writing, the parties’ time to appeal the decision has not yet expired.
The Foronjy decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, 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.
