

Costa v State of New York (2014 NY Slip Op 08390)





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

[*1]Dominick J. Costa, etc., respondent-appellant, 
vState 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


