Betancourt, Van Hemmen, Greco & Kenyon, LLC, New York, NY
(Jeanne-Marie Downey Van Hemmen and Alton J. Evans, Jr., of
counsel), for appellant.
Hofmann & Schweitzer, New York, NY (Paul T. Hofmann of
counsel), for respondent.
C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS-RADIX,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
claim to recover damages for personal injuries, the defendant
appeals from an interlocutory judgment of the Court of Claims
(Sise, J.), dated November 6, 2014, which, upon a decision of
the same court dated August 26, 2014, made after a trial on
the issue of liability, finding it 70% at fault in the
happening of the accident, apportioned fault among the
parties accordingly and directed a trial on the issue of
that the interlocutory judgment is affirmed, with costs.
defendant contracted with Modern Continental Construction
Co., Inc. (hereinafter Modern), to do construction work on
the Wantagh Parkway Bridge over the Sloop Channel. The
claimant was employed by Modern as a dock builder and was
injured when he tripped on a padeye on the deck of a work
barge as he was carrying materials along a corridor created
by lumber and construction material. The claimant filed a
claim pursuant to Labor Law § 241(6) alleging a
violation of 12 NYCRR 23-1.7(e)(1), which provides in
relevant part that "[a]ll passageways shall be kept free
from accumulations of dirt and debris and from any other
obstructions or conditions which could cause tripping."
After a trial on the issue of liability, the Court of Claims
determined that the claimant established his claim pursuant
to Labor Law § 241(6), found the defendant 70% at fault
in the happening of the accident, and entered an
interlocutory judgment apportioning fault among the parties
and directing a trial on the issue of damages. The defendant
Law § 241(6) imposes a nondelegable duty upon owners and
contractors to provide reasonable and adequate protection and
safety to construction workers" (Hricus v Aurora
Contrs., Inc., 63 A.D.3d 1004, 1005 [internal quotation
marks omitted]; see Fitzgerald v New York City School
Constr. Auth., 18 A.D.3d 807, 808). "In order to
recover damages on a cause of action alleging a violation of
Labor Law § 241(6), a plaintiff must establish the
violation of an Industrial Code provision which sets forth
specific safety standards" (Hricus v Aurora Contrs.,
Inc., 63 A.D.3d at 1005 [internal quotation marks
omitted]; see Fitzgerald v New York City School Constr.
Auth., 18 A.D.3d at 808). To establish liability under
Labor Law § 241(6), a plaintiff or a claimant must
demonstrate that his injuries were proximately caused by a
violation of an Industrial Code provision that is applicable
under the circumstances of the case (see Mercado v TPT
Brooklyn Assoc., L.L.C., 38 A.D.3d 732, 733; Rivera
v Santos, 35 A.D.3d 700, 702). Contributory and
comparative negligence are valid defenses to a Labor Law
§ 241(6) claim (see Misicki v Caradonna, 12
N.Y.3d 511, 515).
to the defendant's contention, the record supports the
Court of Claims' determination with regard to the
defendant's liability pursuant to Labor Law § 241(6)
based on a violation of 12 NYCRR 23-1.7(e)(1). The testimony
and evidence established that the two to three-foot wide
corridor in which the claimant tripped was created by piles
of lumber and materials on each side, and was used by the
claimant to get from one point of the barge to another. Based
on this evidence, the court did not err in concluding that
the claimant tripped in a passageway within the meaning of 12
NYCRR 23-1.7(e)(1) (see Lois v Flintlock Constr. Servs.,
LLC, 137 A.D.3d 446; Aragona v State of New
York, 74 A.D.3d 1260; Canning v RFD 82nd St.,
285 A.D.2d 439).
while a party is not entitled to recovery under Labor Law
§ 241(6) based on a violation of 12 NYCRR 23-1.7(e) (1)
where the object he or she tripped over was an integral part
of the construction (see O'Sullivan v IDI Constr.
Co., Inc., 7 N.Y.3d 805), here, contrary to the
defendant's contention, the evidence established that the
padeye was not an integral part of the ...