Opinion
60 CA 19-01806
03-26-2021
Terry SLOWE, Plaintiff-Appellant, v. LECESSE CONSTRUCTION SERVICES, LLC, and Stone Quarry Housing Development Fund Corp., Defendants-Respondents.
BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR PLAINTIFF-APPELLANT. LAW OFFICE OF JOHN WALLACE, ROCHESTER (VALERIE L. BARBIC OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICE OF JOHN WALLACE, ROCHESTER (VALERIE L. BARBIC OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion with respect to the Labor Law § 241 (6) claim and reinstating that claim, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages after he was injured by a component of an unbuilt mailbox structure that fell onto him at a construction site. The site was owned by defendant Stone Quarry Housing Development Fund Corp., and the construction project was managed by defendant Lecesse Construction Services, LLC. In his complaint, plaintiff asserted, inter alia, a Labor Law § 241 (6) claim. Defendants moved for summary judgment dismissing the complaint, and plaintiff now appeals from an order that, among other things, granted that motion in part and dismissed, inter alia, the section 241 (6) claim.
Plaintiff's Labor Law § 241 (6) claim is predicated on 12 NYCRR 23-2.1 (a) (1), which provides in relevant part that "[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare" (see generally Aragona v. State of New York , 74 A.D.3d 1260, 1261-1262, 905 N.Y.S.2d 237 [2d Dept. 2010] ; Lehner v. Dormitory Auth. of State of N.Y. , 221 A.D.2d 958, 959, 633 N.Y.S.2d 911 [4th Dept. 1995] ). Contrary to defendants’ assertion, the scope of 12 NYCRR 23-2.1 (a) (1) is not limited exclusively to obstructed thoroughfares (see Rodriguez v. DRLD Dev., Corp. , 109 A.D.3d 409, 410, 970 N.Y.S.2d 213 [1st Dept. 2013] ; Castillo v. 3440 LLC , 46 A.D.3d 382, 383, 847 N.Y.S.2d 575 [1st Dept. 2007] ; but see Cody v. State of New York , 82 A.D.3d 925, 928, 919 N.Y.S.2d 55 [2d Dept. 2011] ; Burkoski v. Structure Tone, Inc. , 40 A.D.3d 378, 382, 836 N.Y.S.2d 130 [1st Dept. 2007] ). Rather, the plain text of the regulation creates three distinct obligations and potential sources of liability: first, "[a]ll building materials shall be stored in a safe and orderly manner"; second, "[m]aterial piles shall be stable under all conditions"; and third, "[m]aterial piles shall be ... so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare" ( 12 NYCRR 23-2.1 [a] [1]). Neither Motyka v. Ogden Martin Sys. of Onondaga Ltd. Partnership, 272 A.D.2d 980, 981, 708 N.Y.S.2d 681 (4th Dept. 2000) nor Cafarella v. Harrison Radiator Div. of Gen. Motors, 237 A.D.2d 936, 938, 654 N.Y.S.2d 910 (4th Dept. 1997) supports defendants’ interpretation of 12 NYCRR 23-2.1 (a) (1) because those cases addressed only the obstructed-thoroughfare portion of the regulation.
Here, we agree with plaintiff that the mailbox component at issue qualifies as a "building material[ ]" within the meaning of 12 NYCRR 23-2.1 (a) (1), and we further agree with plaintiff that triable issues of fact exist regarding the "safe[ty] and orderl[iness]" of the "manner" in which defendants "stored" that "building material[ ]." Consequently, Supreme Court erred in granting defendants’ motion insofar as it sought summary judgment dismissing plaintiff's Labor Law § 241 (6) claim (see Rodriguez , 109 A.D.3d at 410, 970 N.Y.S.2d 213 ; Castillo , 46 A.D.3d at 383, 847 N.Y.S.2d 575 ). We therefore modify the order accordingly.
We have considered and rejected plaintiff's remaining contentions.