Practice point: The Appellate Division reversed the motion court, and denied that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 241(6).
The plaintiff's statutory claim is predicated on an alleged violation of 12 NYCRR 23-1.5(c)(3), which provides that "[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." Sections 23-9.2(a) and 23-1.5(c)(3) each set forth an action to be taken ("corrected by necessary repairs or replacement"; "repaired or restored . . . or removed") and set forth the trigger or time frame for taking such action ("upon discovery"; "immediately . . . if damaged"). Therefore, the Appellate Division held that 12 NYCRR 23-1.5(c)(3) is sufficiently concrete and specific to support the plaintiff's cause of action.
In addition, the defendants failed to eliminate all triable issues of fact as to whether the plaintiff was performing "construction work," as defined by 12 NYCRR 23-1.4(b)(13), and therefore they did not satisfy their prima facie burden as to this issue.
Student note: The statute imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed. As a predicate to the cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code.
Case: Perez v. 286 Scholes St. Corp., NY Slip Op 09664 (2d Dept. 2015)
Here is the decision.
Tuesday's issue: An escalator accident, and summary judgment denied.
