Site of Plaintiff’s Fall Not Passageway According to Industrial Code
In a recent decision, the Appellate Division, Second Department modified a Supreme Court, County order that denied the branches of defendants’ motion for summary judgment to dismiss plaintiff’s Labor Law § 241(6) cause of action as predicated on violations of 12 N.Y.C.R.R. § 23-1.7(d)(“slipping hazards”) and (e)(1)(“tripping hazards – passageways”) and (2)(“tripping hazards – working areas”).
In Bittrolff v. City of New York, 2025 NY Slip Op 02307, plaintiff alleges that while he was walking through a room on a construction site, he slipped on and became entangled in a portion of plastic tarp that was covering a pool table. The tarp had extended past the pool table, onto the floor, causing him to fall.
After the conclusion of discovery, defendants moved for summary judgment to dismiss plaintiff’s Labor Law § 241(6) cause of action, as predicted on violations of § 23-1.7(d) and (e)(1) and (2) of the Industrial Code. The Supreme Court, Kings County denied the motion. The Appellate Division, Second Department affirmed with respect to § 23-1.7(d) and (e)(1). With respect to § 23-1.7(d), the defendants failed to eliminate triable issues of fact as to whether the plastic tarp was a foreign substance or whether the tarp was integral to the work being performed. With respect to § 23-1.7(e)(2), the defendants failed to establish that the plaintiff’s fall was not caused by a tripping hazard within the meaning of the industrial code section, or that the plastic tarp was integral to and consistent with the work being performed within the meaning of the statute.
With regard to the § 241(6) cause of action as predicated on a violation of § 23-1.7(e)(1), the lower Court erred in denying the motion as the defendants established that subsection was inapplicable because the area where plaintiff fell was not a passageway within the meaning of the statue and plaintiff failed to raise a triable issue of fact in opposition.
The industrial code can be tricky and an in-depth examination of the facts of the case is crucial, especially in determining the viability of a dispositive motion when dealing with § 241(6). If plaintiff falls in a work area, the Second Department illustrates, you would be hard pressed as plaintiff to also argue that you fell in a passageway.
The Bittrolff decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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