Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2024-10707, (Index No. 514226/21)

Valerie Brathwaite Nelson, J.P.

Lillian Wan

Laurence L. Love

Elena Goldberg Velazquez, JJ.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Anne J. Swern, J.), dated September 5, 2024. The order, insofar as appealed from, denied those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6). The order, insofar as cross-appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) and denied the plaintiff's cross-motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6).

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.5, 23-1.7, and 23-2.1 to 23-2.3, and 29 CFR part 1926, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendants.

In February 2021, the plaintiff allegedly was injured while working at a construction site owned by the defendant New York City School Construction Authority (hereinafter SCA) in Brooklyn. At approximately 4:00 p.m., the plaintiff allegedly entered the cockpit of a compact track loader or "skidsteer" on site to prepare it for use during the rest of his shift, since he was anticipating, among other things, inclement weather. The plaintiff testified at a hearing pursuant to General Municipal Law § 50-h and his deposition that as he was exiting the cockpit, he slipped on an icy step located on the compact track loader and fell approximately three feet to the ground.

The plaintiff commenced this action to recover damages for personal injuries against SCA and the defendant City of New York, asserting causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The defendants moved for summary judgment dismissing the complaint. The plaintiff opposed the motion and cross-moved for summary [*2]judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6). Regarding the Labor Law § 241(6) cause of action, the plaintiff's opposition and cross-motion only addressed so much of that cause of action as was predicated on violations of 12 NYCRR 23-1.7(d) and 23-1.30. In an order dated September 5, 2024, the Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), denied the remainder of the motion, and denied the plaintiff's cross-motion. The defendants appeal, and the plaintiff cross-appeals.

"Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" (Freyberg v Adelphi Univ., 221 AD3d 658, 659 [internal quotation marks omitted]; see Agosto v Museum of Modern Art, 219 AD3d 674, 676). "Where a premises condition is at issue, a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice" (Cagua v Bushwick Holdings, LLC, 238 AD3d 698, 701 [internal quotation marks omitted]; see Walsh v Kenny, 219 AD3d 1555, 1557). "A property owner has constructive notice of a dangerous condition when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Freyberg v Adelphi Univ., 221 AD3d at 659 [internal quotation marks omitted]; see Bonkoski v Condos Bros. Constr. Corp., 216 AD3d 612, 616).

"Under the storm in progress rule, a property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter" (James v Highland Rehabilitation & Nursing Ctr., 222 AD3d 736, 738 [alteration and internal quotation marks omitted]; see Licari v Brookside Meadows, LLC, 214 AD3d 780, 781). "While a lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety, if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the rule not be applied" (James v Highland Rehabilitation & Nursing Ctr., 222 AD3d at 738 [alteration, citation, and internal quotation marks omitted]; see Licari v Brookside Meadows, LLC, 214 AD3d at 781; Fenner v 1011 Rte. 109 Corp., 122 AD3d 669, 670).

Here, the defendants failed to submit any climatological data in support of their motion, and the plaintiff's deposition testimony and General Municipal Law § 50-h hearing testimony failed to establish the time at which the storm stopped, if at all, in relation to the plaintiff's accident (see Fenner v 1011 Rte. 109 Corp., 122 AD3d at 670). Further, the defendants' submissions failed to establish, prima facie, that their representatives were unaware of the allegedly defective condition in the work area (see Toalongo v Almarwa Ctr., Inc., 202 AD3d 1128, 1131; Moscati v Consolidated Edison Co. of N.Y., Inc., 168 AD3d 717, 720). The defendants' submissions failed to eliminate triable issues of fact as to whether they had actual or constructive notice of the allegedly dangerous condition and whether a reasonably sufficient amount of time had elapsed after the cessation of the snowfall to enable them to take remedial measures (see Fenner v 1011 Rte. 109 Corp., 122 AD3d at 670-671; see also Licari v Brookside Meadows, LLC, 214 AD3d at 781-782).

Moreover, contrary to the defendants' contention, the plaintiff's failure to see the ice on the step prior to his fall does not establish that the cause of the accident cannot be identified without engaging in speculation (see Gardell v Arden Ave. Homeowners Assn., 228 AD3d 834, 835-836; Steele v Samaritan Found., Inc., 176 AD3d 998, 1000). Further contrary to the defendants' contention, their submissions revealed triable issues of fact as to whether the plaintiff was authorized to operate the compact track loader at the time in question and as to whether his actions were the sole proximate cause of the accident. Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). However, we decline the plaintiff's request to search the record and award him summary judgment on the issue of liability on those causes of action.

"Labor Law § 240(1) imposes a nondelegable duty . . . upon owners and general contractors and their agents to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (Reyes v Astoria 31st St. Devs., LLC, 190 AD3d 872, 874 [internal quotation marks omitted]; see Flores v Fort Green Homes, LLC, 227 AD3d 672, 673). "'[I]t is settled that the extraordinary protections of the statute in the first instance apply only to a narrow class of dangers'" (Canales v Rye Neck Union Free Sch. Dist., 238 AD3d 836, 838 [internal quotation marks omitted], quoting Giraldo v Highmark Ind., LLC, 226 AD3d 874, 875-876). "More specifically, Labor Law § 240(1) relates only to special hazards presenting elevation-related risks. Liability may, therefore, be imposed under the statute only where the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [alteration, citations, and internal quotation marks omitted]; see Canales v Rye Neck Union Free Sch. Dist., 238 AD3d at 838). Thus, the protections of Labor Law § 240(1) "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity" (Ortega v Fourtrax Contr. Corp., 214 AD3d 666, 667 [internal quotation marks omitted]; see Christie v Live Nation Concerts, Inc., 192 AD3d 971, 972).

Here, the defendants established, prima facie, that Labor Law § 240(1) was inapplicable to the facts of this case, the plaintiff failed to raise a triable issue of fact in opposition, and the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability on that cause of action. The approximately three-foot descent from the compact track loader step to the ground was not an elevation-related risk for the purposes of Labor Law § 240(1) (see Toefer v Long Is. R.R., 4 NY3d 399, 408-409; Bond v York Hunter Constr., 95 NY2d 883, 884-885; Canales v Rye Neck Union Free Sch. Dist., 238 AD3d at 838-839). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) and properly denied that branch of the plaintiff's cross-motion which was for summary judgment on the issue of liability on that cause of action.

"'Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'" (Cruz v 451 Lexington Realty, LLC, 218 AD3d 733, 736-737, quoting Guaman v 178 Ct. St., LLC, 200 AD3d 655, 657). 12 NYCRR 23-1.30 provides "'that work sites must have illumination sufficient for safe working conditions wherever workers must work and sets a minimum standard of 10-foot candles in any work area and 5-foot candles in any passageway'" (Araujo v Monadnock Constr., Inc., 241 AD3d 470, 473, quoting Murphy v 80 Pine, LLC, 208 AD3d 492, 497-498).

Here, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR 23-1.30 and that branch of the plaintiff's motion which was for summary judgment on the issue of liability on that portion of that cause of action. Neither the defendants nor the plaintiff eliminated triable issues of fact as to whether the defendants sufficiently complied with the requirements of 12 NYCRR 23-1.30 or whether the alleged violation of this Industrial Code provision was a proximate cause of the accident (see generally Fedrich v Granite Bldg. 2, LLC, 165 AD3d 754, 758; Lucas v KD Dev. Constr. Corp., 300 AD2d 634, 635).

However, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR 23-1.7(d). The plaintiff's deposition testimony that he slipped on the compact track loader's step established, prima facie, that 12 NYCRR 23-1.7(d) was inapplicable to the facts of this case, as these steps are not a "floor, passageway, walkway, scaffold, platform or other elevated working surface" within the meaning of that provision (see Canales v Rye Neck Union Free Sch. Dist., 238 AD3d at 839; Bond [*3]v York Hunter Constr., 270 AD2d 112, 113, affd 95 NY2d 883). In opposition, the plaintiff failed to raise a triable issue of fact.

Additionally, the plaintiff has abandoned his reliance on provisions of the Industrial Code other than 12 NYCRR 23-1.7(d) and 23-1.30 by failing to address those other provisions in his opposition to the defendants' motion or in his brief on appeal (see Rivas v Purvis Holdings, LLC, 222 AD3d 676, 678; Palomeque v Capital Improvement Servs., LLC, 145 AD3d 912, 914). Further, the plaintiff may not rely on regulations promulgated under the Occupational Safety and Health Act of 1970 (OSHA) (see 29 CFR part 1926), since a violation of an OSHA standard does not provide a basis for liability under Labor Law § 241(6) (see Wetter v Northville Indus. Corp., 185 AD3d 874, 876; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311, 313).

Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.5, 23-1.7, and 23-2.1 to 23-2.3, and 29 CFR part 1926.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court