Plaintiff alleges he was injured when he was struck by sheetrock boards while doing renovation work. Plaintiff's expert, a professional engineer whose opinion is unrefuted, said that the boards, which had been leaning against the wall, were inherently unstable and unsafely stored, in violation of Industrial Code (12 NYCRR) § 23-2.1(a)(1). Based on that, the First Department said that the Santos motion for dismissal of the Labor Law § 241(6) claim against him was properly denied, in Castillo v. 3440 LLC, which was decided on December 20, 2007.

The court also said that the claim as against 3440 LLC was properly dismissed since Santos did not obtain prior written consent for this work, in violation of the lease terms, and since 3440 LLC did not learn of the renovation until after plaintiff's accident.

There was a dissent in which one judge pointed to the statutory language which governs the proper and safe storage of building materials in a "passageway, walkway, stairway or other thoroughfare." The dissenting justice said that, here, plaintiff's accident occurred in an open work space, and so the statute does not apply.