Lacruise v. Memorial Sloan-Kettering Cancer Center (David H. Koch Center) et al.

Summary

The New York Appellate Division, First Department modified an order concerning a construction-site accident involving an uncovered drainage hole on a roof setback. The court dismissed the plaintiff's Labor Law § 241(6) claim because the outdoor roof setback was not a passageway under Industrial Code § 23-1.7(e)(1), but affirmed the denial of summary judgment for defendants and the grant of partial summary judgment to plaintiff on the Labor Law § 200 claim based on evidence of notice of the dangerous condition.

Holdings

1. An outdoor roof setback is not a "passageway" within the meaning of Industrial Code § 23-1.7(e)(1), which applies to an interior or internal way of passage inside a building; therefore, the Labor Law § 241(6) claim predicated on that provision must be dismissed.
2. Plaintiff abandoned the remaining Industrial Code provisions by failing to address them in opposition to defendants' motion, leaving no basis to preserve those theories.
3. Defendants were not entitled to summary judgment dismissing the Labor Law § 200 claim because the accident arose from a dangerous condition on the premises rather than from the means and methods of plaintiff's work; plaintiff therefore did not need to show that defendants exercised supervisory control over his work.
4. Plaintiff was entitled to partial summary judgment on the Labor Law § 200 claim because the evidence established that defendants had, at minimum, constructive notice of the uncovered drainage hole.

Questions Presented

1. Whether an outdoor roof setback is a "passageway" within the meaning of Industrial Code § 23-1.7(e)(1), supporting a Labor Law § 241(6) claim.
2. Whether plaintiff abandoned the remaining Industrial Code provisions supporting his Labor Law § 241(6) claim by failing to address them in opposition to defendants' motion.
3. Whether defendants were entitled to summary judgment on plaintiff's Labor Law § 200 claim where the accident arose from a dangerous premises condition rather than the means and methods of plaintiff's work.
4. Whether plaintiff established defendants' actual or constructive notice of the uncovered drainage hole for purposes of partial summary judgment on the Labor Law § 200 claim.

Disposition

modified_and_affirmed