Opinion
11713 Index 159913/13
06-25-2020
Joseph SANCINO, Plaintiff-Appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants-Respondents, The Related Companies, Inc., Defendant.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant. Fabiani Cohen & Hall, LLP, New York (Allison A. Snyder of counsel), for respondents.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant.
Fabiani Cohen & Hall, LLP, New York (Allison A. Snyder of counsel), for respondents.
Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.
Appeal from order, Supreme Court, New York County (Kathryn E. Freed, J.), entered on or about March 4, 2019, deemed appeal from judgment, entered March 28, 2019, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Metropolitan Transportation Authority, New York City Transit Authority, MTA Capital Construction Company, Hudson Yards Development Corporation, and the City of New York (collectively defendants) for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims as against them, unanimously modified, on the law, to reinstate plaintiff's Labor Law § 241(6) claim, and otherwise affirmed, without costs.
Plaintiff was an ironworker who was attempting to move a wheeled dumpster over an unfinished floor covered in portions by plywood slabs. As he reached a lip in the plywood, he heard a crack, and felt what he believed to be one of the wheels breaking. The dumpster became off balance and began to topple over, and when another site worker attempted to help, the dumpster toppled over on to plaintiff, allegedly injuring his toe. Plaintiff commenced this action asserting causes of action under, inter alia, Labor Law § 241(6).
The motion court erred in dismissing so much of plaintiff's Labor Law § 241(6) claim premised upon violations of Industrial Code ( 12 NYCRR) §§ 23–1.28(b), 23–1.5(c), and 23–1.7(e)(2). Plaintiff's claim premised upon § 23–1.7(e)(2), which concerns debris in passageways, is viable because the area where the accident occurred was a passageway for the purposes of that provision (see Rossi v. 140 W. JV Mgr. LLC, 171 A.D.3d 668, 99 N.Y.S.3d 38 [1st Dept. 2019] ; Lois v. Flintlock Constr. Servs., LLC, 137 A.D.3d 446, 27 N.Y.S.3d 120 [1st Dept. 2016] ). The provision applies not just when loose debris causes a direct trip and fall, but also in circumstances similar to those involved here (see Picchione v. Sweet Constr. Corp., 60 A.D.3d 510, 875 N.Y.S.2d 42 [1st Dept. 2009] ).
With regard to § 23–1.28(b), which pertains to hand-propelled vehicles, and § 23–1.5(c), which prohibits use of machinery or equipment that is not in good repair and safe working condition, defendants failed to make a prima facie showing that the wheeled dumpster was not defective (see Ahern v. NYU Langone Med. Ctr., 147 A.D.3d 537, 48 N.Y.S.3d 39 [1st Dept. 2017] ; Picchione, 60 A.D.3d at 512, 875 N.Y.S.2d 42 ; compare Ruggiero v. Cardella Trucking Co., 16 A.D.3d 342, 793 N.Y.S.2d 337 [1st Dept. 2005] ). Plaintiff's argument concerning the applicability of § 23–2.1(a) however, is unpersuasive, as the accident did not occur due to the methods of material storage. This Court declines to consider plaintiff's arguments concerning Labor Law 240(1), since he abandoned that claim by failing to oppose that aspect of defendants' motion (see Ng v. NYU Langone Med. Ctr., 157 A.D.3d 549, 69 N.Y.S.3d 36 [1st Dept. 2018] ; Josephson LLC v. Column Fin., Inc., 94 A.D.3d 479, 941 N.Y.S.2d 495 [1st Dept. 2012] ).