Elevator Falls Fifteen Floors After Sudden Stop
In a recent decision, the Appellate Division, First Department modified a Supreme Court, New York County decision that dismissed plaintiff’s Labor Law § 241(6) cause of action as predicated on Industrial Code § 23-7.3 (“Temporary use of permanent elevators”) and denied the motion insofar as predicated on Industrial Code § 23-1.7(e).
In Smith v. Extell W. 45th LLC, 2024 NY Slip Op 04533, plaintiff was employed as a carpenter who was working at a construction site. While riding an elevator, it suddenly stopped, shook and “abruptly descended approximately 15 floors.” Plaintiff alleged that when the elevator jerked to a stop, it caused his right foot to move/jump. When his right foot landed on debris on the floor, it caused him to twist to his right, after which he immediately experienced lower back pain.
Upon review, the First Department held that the lower Court properly dismissed plaintiff’s Labor Law § 241(6) claim as predicated on violations of Industrial Code § 23-7.3(e), as this Industrial Code section in insufficiently specific to support a § 241(6) cause of action.
The First Department also held that the lower Court should have granted the branch of defendant’s motion to dismiss the Labor Law § 241(6) claim as predicated on Industrial Code § 23-1.7(e)(1), which provide that passageways shall be kept free from accumulations of dirt and debris that could cause tripping. In the instant matter, the elevator that plaintiff was riding in cannot be considered a walkway or pathway.
Lastly, the First Department agreed with the lower Court as to the denial of defendant’s motion to dismiss the § 241(6) claim as predicated on § 23-1.7(e)(2), which provides that “parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris . . . insofar as consistent with the work being performed.” The floor of the elevator within which plaintiff was riding qualifies as an area where “persons work or pass.”
You’ll recall that § 241(6) claims need to be predicated on an Industrial Code violation that has been deemed “sufficiently specific,” which § 23-7.3(e) is not.
As nuanced as it may be, it’s worth noting that while elevators are not considered “passageways” for the purposes of § 23-1.7(e)(1), they are considered areas where “persons pass” for the purposes of § 23-1.7(e)(2).
The Smith decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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