This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 27
Thomas J. O'Brien, Jr.,
            Respondent,
        v.
Port Authority of New York and
New Jersey, et al.,
            Appellants,
Silverstein Properties, Inc.,
et al.,
            Defendants.




           Christopher Simone, for appellants.
           David H. Perecman, for respondent.




DiFIORE, Chief Judge:
           The issue on appeal is whether the Appellate Division
properly determined that plaintiff Thomas O'Brien was entitled to
summary judgment on liability on his Labor Law § 240 (1) cause of
action.   We conclude that there are triable issues of fact and
that, therefore, summary judgment should have been denied.


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                               - 2 -                           No. 27

          Plaintiff was an employee of DCM Erectors (DCM), a
subcontractor at the 1 World Trade Center construction site.
Defendant Port Authority of New York & New Jersey was the owner
of the premises and defendant Tishman Construction Corporation of
New York was the general contractor.
          On the day of the accident, plaintiff was working a
6:00 a.m. to 11:00 p.m. shift, maintaining two welding machines
located on ground level at the site.    It had been raining
periodically during the day.   At around 8:00 p.m., plaintiff
headed downstairs to DCM's shanty, one level below ground, to get
his rain jacket.   Plaintiff used a temporary exterior metal
staircase -- also referred to as a temporary scaffold.    He
testified at his examination before trial that the metal
staircase was wet due to exposure to the elements, that his foot
slipped off the tread of the top step and that he fell down the
stairs, sustaining injuries.   Plaintiff testified that the stairs
were "steep, slippery and smooth on the edges."    He also stated
that his right hand was on the handrail, but he was unable to
hold on because the handrail was wet.
          Plaintiff commenced this Labor Law action and, as
relevant here, sought partial summary judgment on his Labor Law
§§ 240 (1) and 241 (6) causes of action.    In support, plaintiff
submitted an expert affidavit from Walter Konon, a professional
engineer and licensed building inspector with expertise in
construction engineering and construction safety.    Konon did not


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                                - 3 -                         No. 27

view the stairs themselves, but based his opinion on photographs
in the record.   Konon opined that the stairs were "not in
compliance with good and accepted standards of construction site
safety and practice" or with an Occupational Safety and Health
Administration (OSHA) provision, which requires that slippery
conditions on stairways be eliminated before use.   Konon also
stated that the stairs were "smaller, narrower and steeper than
typical stairs," making it more difficult to maintain proper
footing, and that the front portion of the stairs, which comes
into contact with the workers' footwear, tended to become worn
and slippery with use.
          Konon claimed that the stairs showed signs of
longstanding wear and tear.   According to Konon, the only anti-
slip measures in place at the time of plaintiff's fall were
"small round protruding [metal] nubs," which offer "limited anti-
slip protection" even when they are not worn down, as he
maintained they were here.    He further asserted that steel stairs
have a tendency to become slippery when wet and have a decreased
coefficient of friction, particularly when worn down.   Konon
concluded that "[a]ll of these conditions coupled with the fact
that the stairs were wet due to rain and that the workers were
allowed to work and use the stairs despite the rain and the wet
stair treads, created a dangerous condition that was not in
compliance with good and accepted standards of construction site
safety and created a significant risk of slipping on the stairs


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                               - 4 -                          No. 27

and of thus falling down the stairs."
           Plaintiff also submitted an affidavit from a coworker,
who stated that the stairs were slippery when wet and that
"[a]lmost everyone was aware of the slippery nature of the
stairs."
           Defendants submitted two affidavits from their
construction safety expert, David H. Glabe.   Glabe is a licensed
professional engineer and a consultant to the construction
industry, specializing in scaffolding and staircases at
construction sites.   Like Konon, in his first affidavit, Glabe
based his opinion on photographs of the staircase.   He opined
that the staircase was designed for both indoor and outdoor use
and was "designed and manufactured so as to provide traction
acceptable within industry standards and practice in times of
inclement weather."   He found "no evidence" that the perforated
steel treads had been worn down by foot traffic.   He further
observed that the staircase provided both perforated holes to
allow rain to pass through and raised metal nubs for traction,
and opined that these anti-slip measures were sufficient.    Glabe
also disputed that the staircase was smaller, narrower or steeper
than usual -- rather, based on his experience, training and
familiarity with this type of staircase, "the tread depth and
width met good and acceptable construction industry standards."
           In a subsequent affidavit, Glabe described his
inspection of a staircase of the same make and model as the one


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                                - 5 -                          No. 27

at issue.    He confirmed that there was adequate space on the
tread surface of the steps so that a person descending the stairs
could avoid contact with the "nose or front of the step."      He
characterized Konon's opinion that the stairs had a decreased
coefficient of friction as "utterly meaningless" given Konon's
failure to inspect or test the actual staircase either alone or
in conjunction with testing plaintiff's footwear.    Glabe also
opined that the use of both handrails could have helped prevent
plaintiff's fall.    Finally, Glabe stated that, contrary to
Konon's opinion, it was "not possible" to conclude from
photographs in the record that the treads had been worn down.
Rather, "the components of the staircase as designed will
routinely outlast the use of a particular staircase and these
types of staircases may eventually be replaced based only upon a
new design rather than due to wear and tear."
            Supreme Court denied the cross-motions for summary
judgment on plaintiff's Labor Law § 240 (1) claim, finding that
there were issues of fact as to whether the temporary staircase
provided proper protection.    The court, however, granted
plaintiff's motion for partial summary judgment on the Labor Law
§ 241 (6) claim, based on its determination that there had been a
violation of Industrial Code 12 NYCRR § 23-1.7 (d) (relating to
slipping hazards).
            The Appellate Division modified the order, on the law,
granting plaintiff's motion for partial summary judgment on the


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                              - 6 -                           No. 27

Labor Law § 240 (1) claim and denying plaintiff summary judgment
on the Labor Law § 241 (6) claim (131 AD3d 823 [1st Dept 2015]).1
The Court observed that there were conflicting expert opinions as
to the adequacy and safety of the staircase but nonetheless held
that it was "undisputed that the staircase, a safety device,
malfunctioned or was inadequate to protect plaintiff against the
risk of falling" (131 AD3d at 825).
          One Justice dissented in part and would have affirmed
the denial of summary judgment on the Labor Law § 240 (1) claim.
The dissent would have held that the conflicting expert
affidavits gave rise to questions of fact concerning whether the
accident was the result of a statutory violation.
          The Appellate Division granted defendants leave to
appeal by certified question, asking "Was the order of the
Supreme Court, as modified by this Court, properly made?"    We
answer the certified question in the negative.
          Under Labor Law § 240 (1), contractors and owners
engaged "in the erection, demolition, repairing, altering,
painting, cleaning or pointing of a building or structure" must
provide "scaffolding, hoists, stays, ladders, slings, hangers,
blocks, pulleys, braces, irons, ropes, and other devices which
shall be so constructed, placed and operated as to give proper


     1
       Plaintiff did not cross-appeal from the Appellate Division
order, thus rendering his Labor Law § 241 (6) argument beyond our
review (see CPLR 5511; 511 W. 232nd Owners Corp. v Jennifer
Realty Co., 98 NY2d 144, 151 n 3 [2002]).

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                                - 7 -                         No. 27

protection to a person so employed."    Although the statute is
meant to be liberally construed to accomplish its intended
purpose, absolute liability is "contingent upon the existence of
a hazard contemplated in section 240 (1) and the failure to use,
or the inadequacy of, the safety device of the kind enumerated
therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267
[2001]).   In other words, "[l]iability may . . . be imposed under
the statute only where the 'plaintiff's injuries were the direct
consequence of a failure to provide adequate protection against a
risk arising from a physically significant elevation
differential'" (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d
90, 97 [2015], quoting Runner v New York Stock Exch., Inc., 13
NY3d 599, 603 [2009]).
           To the extent the Appellate Division opinion below can
be read to say that a statutory violation occurred merely because
plaintiff fell down the stairs, it does not provide an accurate
statement of the law.    As we have made clear, the fact that a
worker falls at a construction site, in itself, does not
establish a violation of Labor Law § 240 (1) (see e.g. Berg v
Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]; Toefer v Long
Is. R.R., 4 NY3d 399, 407 [2005]; Blake v Neighborhood Hous.
Servs. of N.Y. City, 1 NY3d 280, 288 [2003]; Narducci, 96 NY2d at
267).   Moreover, the present case is distinguishable from "cases
involving ladders or scaffolds that collapse or malfunction for
no apparent reason" where we have applied "a presumption that the


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                               - 8 -                        No. 27

ladder or scaffolding device was not good enough to afford proper
protection" (Blake, 1 NY3d at 289 n 8).
          Here, by contrast, there are questions of fact as to
whether the staircase provided adequate protection.   As noted
above, defendants' expert opined that the staircase was designed
to allow for outdoor use and to provide necessary traction in
inclement weather.   Moreover, defendants' expert opined that
additional anti-slip measures were not warranted.   In addition,
he disputed the assertions by plaintiff's expert that the
staircase was worn down or that it was unusually narrow or steep.
In light of the above, plaintiff was not entitled to summary
judgment on the issue of liability.2
          Although the dissent places great weight on Zimmer v
Chemung County Performing Arts, the holding in that case was that
"in light of the uncontroverted fact that no safety devices were
provided at the worksite, it was error to submit to the jury for
their resolution the conflicting expert opinion as to what safety
devices, if any," should have been employed (65 NY2d 513, 523
[1985] [emphasis added]).   By contrast, here, the experts differ
as to the adequacy of the device that was provided.   Notably,
both of these experts framed their opinions in terms of whether



     2
       We note that defendants did not preserve for our review,
and we thus do not address, the argument that the water was an
ordinary slipping or tripping hazard unrelated to the danger that
the staircase was designed to protect against (see e.g. Nicometi,
25 NY3d at 98-99).

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                              - 9 -                           No. 27

there had been compliance with industry standards.   We agree that
such compliance would not, in itself, establish the adequacy of a
safety device within the meaning of Labor Law § 240 (1), but we
do not read defendants' expert's opinion to be so limited.
          Accordingly, the order of the Appellate Division,
insofar as appealed from, should be modified, without costs, by
denying plaintiff's motion insofar as it sought summary judgment
on the issue of liability on his Labor Law § 240 (1) claim, and
as so modified, affirmed, and the certified question answered in
the negative.




                              - 9 -
O'Brien v The Port Authority of New York & New Jersey
No. 27




RIVERA, J.(dissenting):
            The majority's conclusion that triable factual issues
preclude summary judgment for the plaintiff reflects a
misunderstanding of the legislative intent and statutory mandates
of Labor Law § 240 (1).    Section 240 is a "self-executing statute
. . . containing its own specific safety measures" (Zimmer v
Chemung County Performing Arts, 65 NY2d 513, 522 [1985]), and
subsection 240 (1) places ultimate responsibility for safety
practices at construction sites on the property owner and general
contractor (id. at 520).   One of the core principles of our
section 240 (1) jurisprudence is that it would undermine the
purpose of this section to determine the liability of an owner,
contractor, or agent by reference to industry custom and
practice.   Such a referral would allow owners, contractors and
agents "to diminish their obligations under that statute and to
set their own standard of care for the protection of workers at
the worksite" (id. at 524).   The majority strays from these
fundamental teachings of our Labor Law jurisprudence.
            Under our established case law the Appellate Division
properly concluded that plaintiff is entitled to summary judgment
on his Labor Law § 240 (1) claim.   I would answer the certified


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                               - 2 -                          No. 27

question in the affirmative, and therefore I dissent.
                                I.
           Labor Law § 240 (1) imposes a non-delegable duty upon
all owners, contractors, and agents thereof engaged "in the
erection, demolition, repairing, altering, painting, cleaning or
pointing of a building or structure" to provide "scaffolding,
hoists, stays, ladders, slings, hangers, blocks, pulleys, braces,
irons, ropes, and other safety devices."   Those devices must "be
so constructed, placed and operated as to give proper protection
to a person so employed" on the work site (Labor Law § 240 [1];
see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500
[1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 512
[1991]).
           This duty has its roots in a 19th century legislative
"concern over unsafe conditions that beset employees who worked
at heights" (Blake v Neighborhood Hous. Servs. of N.Y. City, 1
NY3d 280, 285 [2003], citing L 1885, ch 314).   "In promulgating
the statute, the lawmakers reacted to widespread accounts of
deaths and injuries in the construction trades" and, "tellingly,
. . . fashioned [that] pioneer legislation to 'give proper
protection' to the worker" (Blake, 1 NY3d at 285, quoting Labor
Law § 240 [1]).   It embodies the Legislature's intent to "protect
workers by placing ultimate responsibility for safety practices
at building construction jobs where such responsibility actually
belongs, on the owner and general contractor, instead of on


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                               - 3 -                          No. 27

workers, who are scarcely in a position to protect themselves
from accident" (Zimmer, 65 NY2d at 520 [internal citations and
quotations omitted]).   Although Labor Law § 240 (1) evolved over
time (see Blake, 1 NY3d at 285-286), the phrase "give proper
protection" has remained "the heart of the statute and [has]
endured through every amendment" (id. at 285).     "The objective
was -- and still is -- to force owners and contractors to provide
a safe workplace, under pain of damages" (Blake, 1 NY3d at 286;
see Saint v Syracuse Supply Co., 25 NY3d 117, 124 [2015]; see
generally Zimmer, 65 NY2d at 520).     As a consequence, we have
adhered to the bedrock principle that the statute is to be
construed liberally to achieve its purpose of protecting workers
(id. at 521; Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90,
101 [2015]).
           In accordance with those rules, the Court has
steadfastly held that it is for the courts, not for those
responsible for providing worker protection under Labor Law § 240
(1), to determine whether the mandates of that statute have been
met.   Specifically, Zimmer explained that "[t]o determine an
owner or contractor's liability for a violation of section 240
(1) by reference to whether safety devices customarily are used,
and, if so, which ones give 'proper protection' would [be to]
allow owners and contractors to diminish their obligations under
that statute and to set their own standard of care for the
protection of workers at the worksite" (Zimmer, 65 NY2d at 523-


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                               - 4 -                          No. 27

524).
           To vest owners, contractors, and their agents with the
authority to promulgate their own protective standards "would [be
to] clearly contravene the legislative purpose of placing
'ultimate responsibility for safety . . . on the owner and
general contractor'" (id. at 524, quoting 1969 NY Legis Ann, at
407).   Indeed, the Zimmer Court echoed this cogent observation
from the Appellate Division: "'[i]f the state of the building art
is such that no devices have yet been devised to protect workers
operating at such heights in dangerous work, it is illogical to
conclude, given the purpose of the statute, that the
responsibility of owners and contractors is then negated'"
(Zimmer, 65 NY2d at 534, quoting Zimmer v Chemung County
Performing Arts, 102 AD2d 993, 995 [3d Dept 1984] [Mikoll, J.,
dissenting]; see Bland v Manocherian, 66 NY2d 452, 459 [1985]
[noting that Zimmer's "interpretation of the . . . provisions (of
Labor Law § 240 [1]) is . . . binding precedent upon (this)
(C)ourt"]).
           For at least 30 years both our jurisprudence and
parties litigating Labor Law § 240 (1) causes in courts of this
state have abided by those teachings.   The majority's holding
threatens their continued vitality.
                                II.
                   A. Summary Judgment Standard
           It is well settled that "the proponent of a summary


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                               - 5 -                         No. 27

judgment motion must make a prima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact" (Alvarez
v Prospect Hosp., 68 NY2d 320, 324 [1986]).   Summary judgement is
a drastic remedy reserved for those cases where there is no doubt
as to the existence of material and triable issues of fact
(Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404
[1957]).   In
           "cases involving ladders or scaffolds that collapse or
           malfunction for no apparent reason, we have (ever since
           Stewart v Ferguson, 164 NY 553 [1900]) continued to aid
           plaintiffs with a presumption that the ladder or
           scaffolding device was not good enough to afford proper
           protection. Once the plaintiff makes a prima facie
           showing the burden then shifts to the defendant, who
           may defeat plaintiff's motion for summary judgment only
           if there is a plausible view of the evidence -- enough
           to raise a fact question -- that there was no statutory
           violation and that plaintiff's own acts or omissions
           were the sole cause of the accident"
(Blake, 1 NY3d at 289 n 8).
           Although the court must carefully scrutinize the motion
papers in a light most favorable to the party opposing the motion
and must give that party the benefit of every favorable inference
(see Negri v Stop & Shop, Inc., 65 NY2d 625 [1985]), bald,
conclusory assertions are insufficient to defeat a summary
judgment motion (Stonehill Capital Mgt., LLC v Bank of the W., 28
NY3d 439, 448 [2016]).   If, in the Labor Law § 240 (1) context,
defendant's assertions in response to plaintiff's motion for
summary judgment fail to raise a fact question as to the adequacy
of the safety device, or the credibility of plaintiff, the

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                               - 6 -                          No. 27

plaintiff must be accorded summary judgment (see Klein v City of
New York, 89 NY2d 833, 835 [1996]).
         B. Plaintiff's Motion and Defendants' Rebuttal1
          Plaintiff Thomas J. O'Brien, Jr. sued defendants,
amongst others, the Port Authority of New York and New Jersey,
and Tishman Construction Corporation of New York, for injuries
sustained as he was descending a scaffold tower staircase on the
World Trade Center construction site where he was working as a
crane operator and mechanic.   As relevant to this appeal,
plaintiff asserted that defendants, the premises owner and
general contractor for the project, were liable for violations of
Labor Law § 240 (1).
          After discovery, plaintiff moved under CPLR 3212 for
partial summary judgment on his Labor Law § 240 (1) claim,
arguing that defendants failed to provide him with an adequate
safety device as required because the stairs were wet, slippery,
worn, narrow, steep, and lacked anti-slip measures.     In support
of his motion, plaintiff submitted his deposition detailing the
circumstances leading to his fall and the condition of the
staircase.   He explained that at the time of his injury, he was
employed at the construction site.     It had been raining on and
off throughout the day and at approximately 8 p.m., he went to


     1
       My analysis is limited to that portion of the order
granting summary judgment on plaintiff's Labor Law § 240 (1)
claim as it is the only matter properly before the Court (maj op
at n 1).

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                                 - 7 -                         No. 27

get his rain jacket, which was located in a shanty off a platform
one flight down from where he was working.    To access the lower
level, plaintiff proceeded to the nearby external temporary steel
scaffold staircase, which was uncovered and exposed to the
elements.    The natural light was dim and the area around the
staircase was lit by artificial lights so plaintiff could see
where he was walking.
            Plaintiff described the steps as "metal, steep,
slippery and smooth on the edges," including the treads.      The
steps had holes throughout and the staircase had a metal railing
on each side.    Plaintiff saw the steps were wet, put his right
hand on the handrail, and attempted to descend the staircase.
When he stepped on the first step, his foot slipped off the tread
and he fell down the rest of the staircase, approximately eight
steps, to the platform below.    The handrail was wet and so
plaintiff was unable to get a grip as he fell.
            As a result of the fall, plaintiff suffered various
injuries, initially extending down his entire right side from
where his head hit the scaffolding to his right ankle, and later
including his back and neck.    Following the accident plaintiff
had cervical spine surgery, was prescribed pain medication for
his neck, arm, and hand, and was scheduled to have ankle surgery
at the time of his deposition.
            Plaintiff's additional submissions further described
the slippery condition of the staircase and its impact on


                                 - 7 -
                               - 8 -                         No. 27

plaintiff's fall.   He submitted pictures of the staircase and
climatological data indicating it had rained shortly before he
fell.   Plaintiff's Employer's Report for the Workers'
Compensation Board stated the injury occurred while plaintiff was
"descending stair tower during rain when foot skidded off stair
tread causing O'Brien to fall injuring right foot/ankle," and
another employer accident report stated that "heavy rain during
the evening may have been a contributing factor as to the cause
of the accident."   An affidavit from a coworker stated that the
stairs "were slippery, especially when wet."   A general foreman
of the supplier of this type of tower scaffolding acknowledged in
his deposition that these steel stairs can become slippery when
wet, that anything that makes these stairs slippery causes a
danger, and that the nubs on the stairs meant for gripping wears
out over time, as when people step on them all day long.
           Plaintiff also submitted an expert affidavit from a
professional engineer, with an expertise in construction
engineering and construction safety, who opined that on the day
of the injury the stairs were "not in compliance with good and
accepted standards of construction site safety and practice."    He
explained that wet steel treads "have a tendency to become
slippery and have a decreased coefficient of friction,
particularly under the circumstances here, where the stairs were
worn and lacked proper and properly functioning anti-slip
measures."   Further, "since these types of stair systems and the


                               - 8 -
                               - 9 -                           No. 27

stairs in them are smaller, narrower and steeper than typical
stairs it is more difficult to maintain safe and proper footing."
He stated, "those front portions of the stairs are what is
contacted by the worker's feet those parts tend to become worn
and more slippery as they become older and undergo more use,
requiring the use or installation of more significant, effective
and additional slip protection."   He concluded that the staircase
was unsafe as "the primary friction/anti-slip measure that these
stairs were equipped with are small round protruding nubs, which
provide limited anti-slip protection, at best, and even less as
they became worn down, as they were here."
           Defendants opposed the motion and cross-moved for
summary judgment to dismiss plaintiff's Labor Law § 240 (1)
claim, arguing that the injury was due to an ordinary danger not
covered by the subsection, and, alternatively, that factual
issues exist concerning the adequacy of the staircase as a safety
device.   In support, defendants submitted two affidavits from a
professional engineer.   Defendants' expert opined that plaintiff
was provided with adequate protection pursuant to Labor Law § 240
(1).   He noted that this type of staircase is designed to be used
indoors and outdoors, including in inclement weather, and that
its "perforated holes with raised nubs" are meant to allow water
to pass through.   In response to plaintiff's expert opinion that
the nubs were worn, defendants' expert claimed there was no
evidence the staircase was worn due to foot traffic.   Defendant's


                               - 9 -
                                  - 10 -                         No. 27

expert stated that the staircase was "designed and manufactured
so as to provide traction within industry standards and practice
in times of inclement weather."2
               Supreme Court denied the parties' respective motions on
the Labor Law § 240 (1) claim.       The Appellate Division modified,
4-1,       and granted plaintiff summary judgment on his Labor Law §
240 (1) claim, reasoning that, "[a] fall down a temporary
staircase is the type of elevation-related risk to which section
240 (1) applies, and the staircase, which had been erected to
allow workers access to different levels of the worksite, is a
safety device within the meaning of the statute" (O'Brien v Port
Auth. of New York, 131 AD3d 823, 824 [1st Dept 2015]).       The court
concluded, "[g]iven that it is undisputed that the staircase, a
safety device, malfunctioned or was inadequate to protect
plaintiff against the risk of falling, plaintiff is entitled to
summary judgment, whatever the weather conditions might have
been" (id. at 825).       That determination was correct.
                                   III.
               Plaintiff established that while working at the
construction site he was exposed to a gravity-related risk based



       2
        As the majority points out, defendants did not preserve
for our review the argument that the water was an ordinary
slipping or tripping hazard unrelated to the danger that the
staircase was designed to protect against (see Nicometi, 25 NY3d
at 98-99). Such an argument would be nonsensical here, as
defendants' expert stressed that the staircase at issue was
designed to provide adequate safety when wet.

                                  - 10 -
                              - 11 -                           No. 27

on a height differential as he descended the stairs.    He used a
temporary staircase provided to permit workers to ascend and
descend from one level to another, and the staircase thus
constituted a safety device for the risk associated with
traversing the height differential.    The staircase failed to
adequately protect plaintiff from the risk of slipping and that
failure was a proximate cause of his injuries (see e.g. Bland, 66
NY2d at 460 [improper placement of ladder a proximate cause of
fall]; Koenig v Patrick Const. Corp., 298 NY 313, 319 [1948]
[ladder slipping a proximate cause of fall]).
          The burden then shifted to defendants to rebut and
present "evidence of a triable issue of fact relating to the
prima facie case or to plaintiff's credibility" (Klein v City of
New York, 89 NY2d 833, 835 [1996]).    Defendants concede that the
staircase provided access from the ground to a lower level on the
construction site, and that while at the work site plaintiff fell
down the staircase causing him injuries.    Defendants, like
plaintiff, describe the metal staircase as temporary, featuring
handrails and staircase treads with perforated steel and raised
metal nubs.   Most importantly, and fatal to their position,
defendants did not present evidence to rebut plaintiff's evidence
that the staircase generally is slippery, especially when wet, as
it was on the day of plaintiff's injury.3

     3
       Instead, defendants advance the meritless arguments that
Labor Law § 240 (1) does not apply to plaintiff's case because
his accident arose from an ordinary danger, not a statutorily

                              - 11 -
                                - 12 -                          No. 27

          Instead, defendants maintain, and the majority agrees,
that there is an issue of material fact as to whether the
staircase met applicable safety standards and was in good
condition at the time of the accident.      This argument is based on
a misunderstanding of the Labor Law.      Defendants assert that,
contrary to the plaintiff's expert opinion, their expert opined
that the staircase met industry standards, therefore creating a
question for the fact-finder.    However, as this Court stated in
Zimmer, "liability is mandated by the statute without regard to
external considerations such as rules and regulations, contracts
or custom and usage" (id. at 523).       Although industry practices,
custom and usage may be relevant to determine a violation of §§
200 and 241 (6) of the Labor Law, "where injury is allegedly
caused through a violation of section 240 (1), which establishes
its own unvarying standard, evidence of industry practice is
immaterial" (id.).   The Court has made clear that reliance on


contemplated elevation-related risk, and because plaintiff was
not engaged in an elevation-related task at the time of the fall.
The former argument was properly rejected by the Appellate
Division majority and dissent, indeed by every judge who has
considered it in the course of this litigation, and is not even
mentioned by the majority here.
     We rejected the logic of the latter argument in Nicometi,
where we stated that "[t]he dispositive question . . . is not
whether plaintiff was actively performing a construction task --
as compared to retrieving a tool in furtherance of that object --
at the moment of [the plaintiff's] accident" because such
distinction "would generally be illogical and inconsistent with
the purpose and liberal interpretation of section 240 (1) to
protect workers" (25 NY3d at 98). The section is not limited to
the exact moments when a worker is engaged in a particular task,
but includes elevation risks attendant to the work.

                                - 12 -
                              - 13 -                          No. 27

industry standards for a Labor Law § 240 (1) claim is
antithetical to the legislative scheme because it "would allow
owners and contractors to diminish their obligations under that
statute and to set their own standard of care for the protection
of workers at the worksite.   This would clearly contravene the
legislative purpose of placing 'ultimate responsibility for
safety . . . on the owner and general contractor'" (Zimmer, 65
NY2d at 524 [internal citation omitted]).
           Defendants' argument that there is a question of fact
as to whether the temporary staircase was kept in good condition
is based on the respective experts' opinions concerning the
condition of the metal nubs of that device -- which defendants'
expert stated is what provides the steps' anti-slipping property.
Even if the nubs were not worn this is of no moment.    First, this
is because defendants' expert relied on the adequacy of the nubs
to prevent slipping based on industry standards, which is not
sufficient to avoid liability under Labor Law § 240 (1).   Second,
defendants failed to address plaintiff's testimony that because
the handrails were metal and wet he could not get a grip as he
fell.   Thus, even apart from any question as to the efficacy of
the metal nubs, defendants are liable under section 240 (1)
because they failed to provide adequate handrail protection to
prevent a fall or minimize injuries resulting from a slip.
           Defendants' contention that there is a question of fact
as to whether any device would be able to prevent any and all


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                              - 14 -                           No. 27

accidents -- what the dissent in the Appellate Division referred
to as the existence of "a staircase offering superior protection
from the slipping hazards" presented here -- is merely an attempt
to revive an argument expressly rejected in Zimmer (65 NY2d at
523).   Considering the purposes of the statute, it would be
illogical to absolve owners of liability because devices have not
yet been developed to adequately protect workers from elevation-
related risks.
           The same holds true here.   Defendants cannot escape
liability under Labor Law § 240 (1) by providing an inadequate
safety device merely because there is no safer staircase
available.   The Labor Law puts the responsibility to find an
appropriate safety device squarely on the shoulders of defendants
(Zimmer, 65 NY2d at 524; Blake, 1 NY3d at 286).    A metal outdoor
staircase known to be slippery, especially one exposed to rain,
is not an appropriate safety device within the meaning of the
statute.   This point is implicitly conceded by defendants when
they acknowledge that there was an interior staircase unexposed
to the rain.   Defendants could have, but did not, limit use of
the metal staircase at issue here to "dry days."    Even if the
temporary staircase was the industry standard for wet conditions,
the defendants could have ensured safer descent by roping off the
wet staircase and directing workers to use the dry interior




                              - 14 -
                              - 15 -                          No. 27

staircase.4
           Nor is defendants' assertion that the injuries are due
to plaintiff's negligence relevant to the Labor Law § 240 (1)
claim.   In another context we have recognized the dangers
associated with walking on steps, particularly on the nose of the
step, which plaintiff stated was the area in which his foot
slipped.   "That a person may place his or her foot on a step in
such a way as to avoid the nosing does not imply that every
person will always do so.   What counts here is not whether a
person could avoid the defect, but whether a person would
invariably avoid the defect while walking in a manner typical of
human beings descending stairs" (Hutchinson v Sheridan Hill House
Corp., 26 NY3d 66, 82 [2015]).
                                 IV.
           This is not a complex case, and contrary to the
majority's conclusion, there is no factual issue to be resolved
by the trier of fact.   As the summary judgment submissions
establish, plaintiff was injured at his work site when he lost
his footing on a slippery wet step of a temporary metal staircase
as he descended from one level to another.   Defendants failed to


     4
       Defendants also could have provided some other protection
on this very staircase -- such as additional anti-slipping tread
material or some nonslip material on the handrails for a worker
to hold. Defendants' expert did not dispute that this was
possible, nor that it would have made the staircase safer, but
merely averred that plaintiff's expert failed to cite or
reference any standard, code, rule or regulation that requires
such measures.

                              - 15 -
                                 - 16 -                           No. 27

provide a safety device adequate to protect plaintiff from this
fall.   To conclude otherwise is to credit defendants' contention
that compliance with industry standards and practice is
equivalent to compliance with Labor Law § 240 (1).        That novel
conclusion is one that conflicts with long-held jurisprudence of
this Court, and it is one that I decline to join.         Accordingly, I
would affirm the part of the Appellate Division order concluding
that plaintiff is entitled to summary judgment on liability under
Labor Law § 240 (1).
*   *    *   *   *   *   *   *     *      *   *   *   *   *   *   *    *
Order, insofar as appealed from, modified, without costs, by
denying plaintiff's motion insofar as it sought summary judgment
of liability on his Labor Law § 240(1) claim and, as so modified,
affirmed and the certified question answered in the negative.
Opinion by Chief Judge DiFiore. Judges Abdus-Salaam, Stein and
Garcia concur. Judge Rivera dissents in an opinion in which
Judges Fahey and Wilson concur.

Decided March 30, 2017




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