Defending a general contractor and its employer, the owner of the premises, against alleged violations of Labor Law §§ 240(1), 241(6), and 200, Goldberg Segalla partner J. Daniel Velez earned the complete dismissal of the plaintiff’s complaint on a successful motion for summary judgement.

On November 6, 2015, the plaintiff, a fire sprinkler foreman, was retained by the general contractor to perform piping work within the interior of a temple structure. The plaintiff testified that he was walking with his supervisor toward where he was working on the construction site when he stepped onto a manhole covered by a concrete cover and felt the cover give way. The plaintiff partially fell into the manhole that he alleges was approximately 25 feet deep. Over a year later, he alleged that he underwent numerous surgeries as a result of the accident.

As of March 1, 2019, the plaintiff’s workers’ compensation lien asserted by New York State Insurance Fund (NYSIF) was $192,844.36. The plaintiff was also alleging $1.2 million in claimed lost wages as a result of the accident and his opening demand was $2.5 million with no reduction during an attempt at mediation. After mediation, the counsel for the plaintiff threatened that the demand would increase following a favorable decision on the plaintiff’s motion for summary judgment on liability.

The plaintiff alleged violations of §§ 240(1), 241(6), and 200. Judge William J. Condon of the New York State Supreme Court, Suffolk County, held that the plaintiff failed to state a cause of action under § 240(1) on the grounds that the manhole was not connected in any way to his work and did not pose the type of gravity-related hazard or peril required under the statute. Moreover, the judge held that the plaintiff failed to address all but one of the branches of the defendants’ motions seeking dismissal of all of the alleged Industrial Code violations in the plaintiff’s complaint under § 241(6) and that the plaintiff abandoned the remainder of his allegations in failing to do so.

With regard to the plaintiff’s remaining allegation under § 241(6) that the defendants allegedly violated Industrial Code § 12 NYCRR 23-1.7(b)(1)(i), Judge Condon held that the code relied upon by the plaintiff addresses “hazardous openings” and the plaintiff submitted no evidence that the concrete cover had already caved in or was otherwise open prior to the accident. Moreover, Judge Condon noted that it has been repeatedly held that § 12 NYCRR 23-1.7(b)(1)(i) does not apply to openings that are too small for a worker to completely fall through.

With regard to the plaintiff’s § 200 claims against the general contractor and owner, the judge held that there was no evidence that the general contractor or owner of the premises knew about the alleged condition before the accident. This was based upon the general contractors’ foreman’s testimony that his daily inspections of the worksite did not reveal any dangerous conditions, including broken manhole covers, at or near where the accident occurred.

The judge also held that the subcontractor that installed the manhole prior to the accident submitted evidence that it completed its work at the construction site months before the accident and that the work was inspected and approved by the general contractor and local municipality. Accordingly, the subcontractor was no longer responsible for the management of site activities so as to preserve the integrity of the completed manholes.

In light of the above, the court granted the defendants’ motions for summary judgment, dismissing the plaintiff’s §§ 240, 241(6), and 200 claims in their entirety and denied the plaintiff’s motion for summary judgment on the issue of liability as moot—knocking out up to $2.5 million in potential exposure to our clients.

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