| Costa v State of New York |
| 2014 NY Slip Op 08390 |
| Decided on December 3, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.
2014-00634
v
State of New York, appellant-respondent. (Claim No. 115688)
Mulholland Minion Duffy Davey McNiff & Beyrer (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and Seth M. Weinberg], of counsel), for appellant-respondent.
Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C. Glasser and Gabriel A. Arce-Yee of counsel), for respondent-appellant.
DECISION & ORDER
In a claim to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (Lopez-Summa, J.), dated September 25, 2013, as denied that branch of its motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it alleged a violation of Industrial Code (12 NYCRR) §§ 23-1.7(e)(1) and 23-2.1(a)(1), and the claimant cross-appeals, as limited by his brief, from so much of the same order as granted that branch of the defendant's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it alleged a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(2).
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it alleged a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(1), and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The claimant's decedent allegedly was injured while working as an oiler on a crane barge situated near the Wantagh Bridge. The claimant alleges that the decedent was walking on a steel beam and, as he went to step down from the beam onto a "stack of wood" that was about three-to-four feet high, the wood "gave way," he "lost [his] footing," and he fell. The claimant asserted a Labor Law § 241(6) cause of action based on alleged violations of Industrial Code (12 NYCRR) §§ 23-1.7(e)(1), 23-1.7(e)(2), and 23-2.1(a)(1).
The Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it alleged a violation of 12 NYCRR 23-1.7(e)(2), and should have granted that branch of the defendant's motion which was for summary judgment dismissing that cause of action insofar as it alleged a violation of [*2]12 NYCRR 23-1.7(e)(1). The defendant established, prima facie, that these regulations are inapplicable because the decedent did not trip, and the pile of wood that was between three-to-four feet high could not be considered a tripping hazard (see Stier v One Bryant Park LLC, 113 AD3d 551; Cerverizzo v City of New York, 111 AD3d 535, 536; Gaspar v Pace Univ., 101 AD3d 1073, 1074; Mendez v Jackson Dev. Group, Ltd., 99 AD3d 677, 679). In opposition, the claimant failed to raise a triable issue of fact.
However, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it alleged a violation of Industrial Code (12 NYCRR) § 23-2.1(a)(1). The defendant failed to establish prima facie that the accident did not occur on a passageway (see Aragona v State of New York, 74 AD3d 1260, 1261-1262). Further, there was no showing that the pile of wood was properly stored (see Rodriguez v DRLD Dev., Corp., 109 AD3d 409; Castillo v 3440 LLC, 46 AD3d 382).
RIVERA, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court