Court of Appeals Sets Up First Department to Dunk on Supreme Court, Bronx County Decision
We love a good throwdown.
We recently wrote about a decision from the Court of Appeals in Bazdaric, regarding whether plastic was a “slippery substance” for the purposes of Industrial Code § 23-1.7(d). For a quick refresher, that submission can be found here. A recent case from the Appellate Division, First Department, Lourenco v. City of New York, 2024 NY Slip Op 03540, shows us the beginning of the fallout from the Court of Appeals’ decision in Bazdaric.
In Lourenco, plaintiff alleged that he was injured at a construction site in Bronx County, New York, when, while moving a long metal beam on his shoulder through a passageway, he slipped and tripped on a large piece of plastic sheeting covering a rock. The project involved the process of dismantling a sidewalk bridge and rebuilding it at another location. Plaintiff testified that as he was moving the beam, an extension ladder was leaning against the wall in a passage where he “had to pass” in order to move the beam to its new location. Plaintiff could not go around the ladder due to “dirt” accumulation on the left side of the passageway, so he decided to walk underneath the ladder with the beam over his shoulder. As plaintiff attempted to avoid contact with the ladder while walking under it with a metal beam over his shoulder, he slipped on the plastic sheeting, causing him to do a “kind of split”, which resulted in the fall.
Plaintiff alleges that defendants, inter alia, violated Labor Law § 241(6), as predicated on violations of Industrial Code §§ 23-1.7(d) (“Protection from general hazards”) and 23-1.7(e)(1) and (2) (“Tripping and other hazards”).
Industrial Code § 23-1.7(e)(1)
You’ll recall from our previous expedition into this subject area that prior to the Court of Appeals decision in Bazdaric in 2024, plastic sheeting was not considered a foreign substance contemplated under Industrial Code § 23-1.7(d). The Court of Appeals reversed the First Department’s decision in Bazdaric, which had been decided in 2022.
In deciding Lourenco in 2022, the Supreme Court, Bronx County had relied on the First Department precedent in Bazdaric (that plastic was not a “foreign substance”) and granted defendant’s motion for summary judgment as to § 241(6) as predicated on Industrial Code § 23-1.7(d) and 23-1.7(e)(1) and (2).
The Court of Appeals then issued its decision in Bazdaric in early 2024, during the pendency of the appeal in Lourenco. With the Court of Appeals now holding that plastic is a “foreign substance,” the First Department reverses the Supreme Court, Bronx County decision in Lourenco, citing the newly established precedent.
Industrial Code § 23-1.7(e)(1) and (2)
In turning to Industrial Code § 23-1.7(e)(1) and (2), defendants relied on an “integral to the work” defense, which the Supreme Court, Bronx County agreed with, and granted the defendants’ motion for summary judgment on that basis.
The “integral to the work” defense holds, generally, that if an object is “integral to the work” plaintiff is performing, it is not actionable under this Industrial Code section. However, the First Department noted that the plastic and rock were not integral to the work performed by plaintiff or his coworkers because they constituted an accumulation of debris from previous work that was left in a “passageway” or “working area” which should have been kept free from debris. Thus, the lower Court should have granted plaintiff’s motion for summary judgment as to his Labor Law § 241(6) claim, as predicated on Industrial Code § 23-1.7(e)(1) and (2).
The Lourenco 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.
