Summary
This Appellate Division, First Department decision addresses a plaintiff-concrete worker's Labor Law § 241(6) claims arising from a tripping hazard on a construction site. The court modified the lower court's order to grant defendants' motion for summary judgment on the claim predicated on Industrial Code § 23-1.7(e)(1), finding the incident occurred in an open working area rather than a passageway, but affirmed the denial of summary judgment on the claim under § 23-1.7(e)(2) due to factual disputes regarding sharp projections and structural work. Additionally, the court dismissed the plaintiff's cross-appeal as untimely and jurisdictionally barred.
Topics
Practice areas
Questions Presented
- Whether the notice of appeal was filed within the 30‑day deadline required by CPLR 5513[a] and 5515[1]
- Whether the wire mesh constitutes a “sharp projection” under Industrial Code §23‑1.7(e)(2) for Labor Law §241(6) purposes
Holdings
- The appeal is dismissed because the notice of appeal was filed after the 30‑day deadline, which is non‑waivable and jurisdictional.
Factual background
Marcos Pereira, a concrete worker employed by a subcontractor, tripped on an upright wire mesh used to reinforce poured concrete on the ninth floor of a construction site. The mesh was allegedly not properly tied down and projected upward, causing the injury.
Procedural history
The Supreme Court, New York County denied defendants' motion for summary judgment on certain Labor Law claims and modified the order to grant summary judgment on other claims. The plaintiff appealed the order, but the Appellate Division dismissed the appeal because the notice of appeal was filed after the mandatory 30‑day deadline.