Margro v Health Advocates for Older People Hous. Dev. Fund Co., LLC, Inc.

[*1] Margro v Health Advocates for Older People Hous. Dev. Fund Co., LLC, Inc. 2007 NY Slip Op 51050(U) [15 Misc 3d 141(A)] Decided on May 23, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, DAVIS, JJ
570123/07.

Justin Margro, Plaintiff-Appellant,

against

Health Advocates for Older People Housing Development Fund Company, LLC, Inc., and Gotham Construction Company, LLC., Defendants-Respondents.

Plaintiff, as limited by his brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered July 24, 2006, which granted defendants' motion for summary judgment dismissing plaintiff's Labor Law §241(6) claim and denied plaintiff's motion to amend his bill of particulars.

Per Curiam.
Order (Anil C. Singh, J.), entered July 24, 2006, modified to reinstate plaintiff's Labor Law §241(6) claim insofar as it is based on Industrial Code (12 NYCRR) 23-1.7(a), and as modified, affirmed, without costs.

Plaintiff, a laborer, was injured when he was struck by a "stripping bar" that fell down an elevator shaft in a building under construction. Plaintiff allegedly was ascending a ladder in the elevator shaft when he heard someone shout "watch out," and was struck in the head and wrist by the three-foot stripping bar. Although we agree that the remaining Industrial Code sections relied upon by plaintiff are inapplicable to the facts of this case, we find that a triable issue of fact exists as to plaintiff's Labor Law § 241(6) claim insofar as it is based on a violation of 12 NYCRR 23-1.7(a), which requires protective measures to guard against falling objects associated with overhead activities (see Belcastri v Hewlett Woodmere Union Free School District, 286 AD2d 744 [2001]). In their deposition testimony, defendants' representatives expressly recognized the need for overhead protection, including planking, railings and barriers, to protect workers against falling objects in the elevator shaft.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 23, 2007