Zieris v City of New York

Zieris v City of New York 2012 NY Slip Op 01764 Decided on March 13, 2012 Appellate Division, First 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 March 13, 2012
Saxe, J.P., Sweeny, Freedman, Manzanet-Daniels, JJ.
7061 103335/06

[*1]John Zieris, et al., Plaintiffs-Appellants,

v

The City of New York, Defendant-Respondent.




Sacks and Sacks, LLP, New York (Scott N. Singer of counsel),
for appellants.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of
counsel), for respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 11, 2011, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff John Zieris, who was employed by non-party Koch Skanska Inc. (KSI) as an ironworker, was injured while performing rivet removal work on a bridge when he stepped on a loose rivet stem and fell. He commenced this action against defendant alleging, inter alia, violations of Labor Law § 200 and § 241(6).

The court properly dismissed the Labor Law § 200 claim as there is no evidence that defendant created the condition. It was neither responsible for nor had any input in setting up the work site. Moreover, plaintiff testified that he did not notice any debris on the platform where he fell before the accident and that proper procedures were in place to clear the platform of any debris during the day. Additionally, neither KSI nor defendant received any complaints regarding any tripping hazards (see Canning v Barneys N.Y., 289 AD2d 32, 33 [2001]). Insofar as plaintiff argues that defendant should have known about the condition, defendant's engineer testified that although proper procedures were in place, it was not possible to catch all of the rivet pieces upon removal and a general awareness of a hazardous condition is insufficient to impute constructive notice (see Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]; DeJesus v New York City Hous. Auth., 53 AD3d 410, 411 [2008]).

The court also properly dismissed plaintiff's Labor Law § 241(6) claim, which was predicated on an alleged violation of Industrial Code Rule 23-1.7(e). Even assuming that the area plaintiff traversed could be deemed a "passageway" within the meaning of Rule 23-1.7(e), plaintiff testified that he tripped on the rivet after he entered the common, open work area (see Dalanna v City of New York, 308 AD2d 400, 401 [2003]). Additionally, Rule 23-1.7(e) does not apply because the evidence shows that the subject rivet stem constituted an integral part of plaintiff's work. Defendant's evidence that plaintiff was engaged in rivet removal, such work was ongoing in various parts of the bridge, and all falling parts could not be caught while plaintiff and his coworkers were actively engaged in the removal work, established that the rivet stem resulted from the work plaintiff was performing (see Solis v 32 Sixth Ave. Co., LLC, 38 AD3d 389, 390 [2007]; Cabrera v Sea Cliff Water Co., 6 AD3d 315, 316 [2004]). Plaintiff's [*2]argument that the rivet did not originate from the work that he himself was performing is unavailing, as rivets left by his coworkers, who were performing the same rivet removal work, could still be deemed an integral part of the work (Cabrera, 6 AD3d at 316).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 13, 2012

CLERK