Manns v. Norstar Building Corp.

Appeals from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered June 26, 2003. The order, insofar as appealed from, granted the motion of plaintiff for partial summary judgment on liability pursuant to Labor Law § 240 (1) and denied those parts of the cross motions of defendants and third-party defendant for summary judgment dismissing the causes of action pursuant to Labor Law § 240 (1) and § 241 (6).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted plaintiff’s motion seeking partial summary judgment on the issue of liability under Labor Law § 240 (1). “Plaintiffs work in the area of the open and unguarded [opening] subjected plaintiff to a hazard that the devices required by section 240 (1) are designed to protect against” (Griffin v MWF Dev. Corp., 273 AD2d 907, 908 [2000]). “Because plaintiff fell through an opening in the floor, he is entitled to judgment on liability under Labor Law § 240 (1)” (Russell v Baker Rd. Dev., 278 AD2d 790, 790 [2000], lv dismissed 96 NY2d 824 [2001]).

Moreover, the court properly refused to grant that part of the cross motions seeking summary judgment dismissing plaintiff s Labor Law § 241 (6) cause of action to the extent that it is based on 12 NYCRR 23-1.7 (b) (1) (see Carpenter v 149 Edison St., 269 AD2d 751 [2000]), and 12 NYCRR 23-1.15 (see Wells v British Am. Dev. Corp., 2 AD3d 1141, 1143-1144 [2003]). Present— Pigott, Jr., PJ., Gorski, Martoche and Hayes, JJ.