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New York Appellate Court Denies Motion to Dismiss Pursuant to CPLR 32122

Labor Law §241 (6) “requires owners and contractors, except owners of one or two-family dwellings who contract for but do not direct or control the work, to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor”.

This section imposes a no-ndelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition. In order to recover, a claimant need not prove that the owner or contractor exercised supervision or control over the work being performed. However, the worker must allege and prove that the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law.

As to defendant 305-307 West, summary dismissal of plaintiff’s Labor Law §241(6) claims against it based on the homeowners’ exception is warranted. In 1980, the Legislature amended Labor Law §241 to exempt “owners of one and two-family dwellings who contract for but do not direct or control the work” from the absolute liability imposed by these statutory provisions. Here, it is undisputed that 305-307 West’s building was being renovated as a single-family dwelling for the photographer and her family. The record also establishes that 305-307 West, as the owner of that building, did not direct or control the work being performed on the renovation project. Moreover, plaintiff does not address the applicability of the homeowners’ exemption to 305-307 West. Accordingly, 305-307 West is shielded by the homeowner exemption from the absolute liability of Labor Law §241 and dismissal of this claim as asserted against 305-307 West is warranted.

Contrary to the defendants’ contention, 12 NYCRR 23-1.7(d) contains specific directives that are sufficient to sustain a cause of action under Labor Law §241(6). And, defendants failed to establish that 12 NYCRR 23.1-7 (d)(1) does not apply to this case on the ground that his incident was not caused by a slipping hazard. The roof where the injury occurred served as a floor, walkway, scaffold or platform within the meaning of this provision. That plaintiff did not fall is not dispositive, as there is no such requirement under the statute. This section prohibits the “use” of walking surfaces in a slippery condition, “which may cause slippery footing”. Furthermore, the evidence in the record indicates that the combination of snow and rain resulted in the slippery condition of the sloped roof, such that plaintiff was unable to get traction to secure his footing.

In this regard, contrary to Thames’s contentions, plaintiff’s affidavit that he slipped does not “completely contradict” his deposition testimony, wherein he stated that the roof was covered with half an inch of snow and the conditions were slippery. Thus, it cannot be said that plaintiff’s affidavit has been tailored to avoid the consequences of his sworn deposition testimony. An issue of fact exists as to whether accident defendants failed to provide plaintiff with safe, non-slippery footing, in violation of section 23-1.7 (d), and whether such violation caused or contributed to plaintiff’s injury. Thus, dismissal of the plaintiff’s Labor Law §241(6) claim predicated on the alleged violation of section 23-1.7 (d) is unwarranted as against the defendants.

Accordingly, the court held that in light of this issue of fact, defendant’s motion to dismiss the contractor’s third-party complaint and the Owners’ cross-claim for contractual indemnification is denied. For the same reasons, the portion of the Owners’ motion for summary judgment on their cross-claim for contractual indemnification against defendant is likewise denied.

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