Practice Point: The Appellate Division reversed, and dismissed the complaint in its entirety, in this action where plaintiff was injured when he stepped into a hole on the flatbed trailer on which he was working.
Defendants demonstrated their prima facie entitlement to summary
judgment dismissing the § 200 claims, as the
uncontroverted evidence shows that defendants neither supervised or
controlled plaintiffs' work, and that they had no actual or constructive
notice of the hole in the flatbed trailer.
As for the § 240(1) claim, as plaintiff was working on a flatbed
trailer, he was not exposed to any
gravity-related risk arising from his work. In fact, there is nothing in the record as
to the manner of safety device that should have been provided to
plaintiff.
While plaintiffs submitted in their pleadings and bills of
particulars at least a dozen specific Industrial Code violations in
support of their § 241(6) claim, only two were contested on
appeal, and so the remainder are deemed abandoned and dismissed.
Plaintiffs allege a violation of Industrial Code § 23-1.7(b)(1)(i), which pertains to hazardous
openings. However, that regulation has been construed to apply to
openings that persons can fall through in their entirety. The hole at issue here does not meet this definition.
Industrial Code § 23-9.2(a) pertains to power-operated equipment. However, the flatbed trailer at issue here is not a piece of power
operated equipment, and its attachment to a truck does not transform it
into such.
Student note: As a result of the dismissal of the complaint in the entirety, plaintiff's spouse has no derivative claims.
Case: Brown v. New York-Presbyterian HealthCare Sys., Inc., NY Slip Op 08912 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: A slip-and-fall on water in the lobby.
