Thornton v. Riverbay Corp.

Full title: Steven T. THORNTON, Plaintiff–Respondent, v. RIVERBAY CORPORATION…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: May 13, 2014

117 A.D.3d 521 (N.Y. App. Div. 2014)

117 A.D.3d 521

2014 N.Y. Slip Op. 3450

Opinion

2014-05-13

Steven T. THORNTON, Plaintiff–Respondent, v. RIVERBAY CORPORATION, Defendant–Appellant, Allied Renovation Corp. et al., Defendants. [And a Third–Party Action].

Malapero & Prisco LLP, New York (Mark A. Bethmann of counsel), for appellant. Bernard T. Callan, P.C., Central Islip (Bernard T. Callan of counsel), for respondent.

TOM

Malapero & Prisco LLP, New York (Mark A. Bethmann of counsel), for appellant. Bernard T. Callan, P.C., Central Islip (Bernard T. Callan of counsel), for respondent.
TOM, J.P., ACOSTA, MOSKOWITZ, GISCHE, CLARK, JJ.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered June 4, 2013, which, to the extent appealed from, denied that part of the motion of defendant Riverbay Corporation (Riverbay) for summary judgment dismissing the Labor Law § 241(6) claim under Industrial Code (12 NYCRR) § 23–1.7(e)(1), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Riverbay dismissing the complaint as against it.

The record demonstrates that there is no triable issue of fact as to whether the proximate cause of plaintiff's injury was a tripping hazard within a passageway ( see12 NYCRR 23–1.7[e][1] ). Plaintiff's testimony and affidavit showed that his accident occurred when his jacket pocket caught on a doorknob, which caused him to “jerk[ ] back” and lose his balance and dislodged the roll of tar paper that had been holding the door open, allowing the door to close on his finger. Although plaintiff also testified that he tripped on the roll, this took place only after the roll had fallen from its original position propped against the door. There is no evidence that the roll was an obstruction or tripping hazard in its original position, and thus, plaintiff's injury was not caused by any violation of 12 NYCRR 23–1.7(e)(1) ( see Garcia v. Renaissance Gardens Assoc., 242 A.D.2d 463, 464, 662 N.Y.S.2d 260 [1st Dept.1997]; see also Brown v. New York City Economic Dev. Corp., 234 A.D.2d 33, 34, 650 N.Y.S.2d 213 [1st Dept.1996] ).