Gomez-Jimenez v 50 West Development, LLC
Attorneys and Parties
Brief Summary
Construction-site safety under Labor Law § 241(6) [imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety to construction workers; liability requires a violation of an applicable Industrial Code provision] predicated on 12 NYCRR 23-1.7(a)(1) [New York Codes, Rules and Regulations (NYCRR) rule requiring overhead protection in areas normally exposed to falling material or objects].
On renewal and reargument, the Supreme Court dismissed the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.7(a)(1) and denied plaintiff's summary judgment on liability.
The grant of defendants' summary judgment dismissing the § 241(6) claim based on 12 NYCRR 23-1.7(a)(1) was reversed; that dismissal was vacated and the prior denial of defendants' motion was reinstated.
Defendants failed to establish entitlement to judgment as a matter of law because evidence presented triable issues of fact as to whether the accident area was normally exposed to falling materials or objects, making 12 NYCRR 23-1.7(a)(1) potentially applicable. The court properly granted leave to renew and reargue but correctly denied plaintiff's own summary judgment on liability.
Background
Plaintiff, a laborer employed by a subcontractor, was sweeping debris in a building lobby while coworkers stripped plywood from the ceiling above. A piece of plywood removed by a coworker on a scaffold fell approximately 13–14 feet and struck plaintiff in the chest. Plaintiff sued the owner and others alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6), the latter predicated on 12 NYCRR 23-1.7(a)(1) concerning overhead protection in areas normally exposed to falling materials or objects.
Lower Court Decision
In a September 28, 2020 order, the Supreme Court dismissed the common-law negligence and Labor Law §§ 200 and 240(1) claims, denied defendants' motion to dismiss the § 241(6) claim predicated on 12 NYCRR 23-1.7(a)(1), and granted plaintiff summary judgment on liability on that § 241(6) theory. In a June 17, 2021 order, the court granted leave to renew and reargue under CPLR 2221(d), (e) [New York Civil Practice Law and Rules (CPLR) standards for motions to reargue and renew], vacated its prior grant to plaintiff, denied plaintiff's liability motion, and granted defendants summary judgment dismissing the § 241(6) claim premised on 12 NYCRR 23-1.7(a)(1).
Appellate Division Reversal
The Appellate Division modified. It agreed that renewal and reargument were properly granted and affirmed the denial of plaintiff's summary judgment on liability upon renewal/reargument. However, it reinstated the September 28, 2020 determination denying defendants' motion for summary judgment on the § 241(6) claim predicated on 12 NYCRR 23-1.7(a)(1), holding that defendants failed to show entitlement to judgment as a matter of law because there are triable issues of fact regarding whether the work area was normally exposed to falling materials or objects.
Legal Significance
Clarifies that where workers are performing overhead removal work (e.g., stripping ceiling plywood) and a worker below is struck by falling material, there is at least a triable issue on the applicability of 12 NYCRR 23-1.7(a)(1) to support a Labor Law § 241(6) claim. Defendants cannot obtain summary judgment by merely disputing exposure; conversely, plaintiffs are not automatically entitled to liability without conclusive proof that the area was normally exposed.
In § 241(6) cases premised on 12 NYCRR 23-1.7(a)(1), active overhead work that generates falling debris typically creates fact issues precluding defendants' summary judgment, but plaintiffs still must prove that the area was normally exposed to falling objects to obtain liability as a matter of law.