The First Department determined plaintiff’s Labor Law 240(1) cause of action, which was based upon injury incurred in an elevator, was properly dismissed. Under the circumstances (not explained in the decision) the elevator could not be considered a safety device. Plaintiff’s Labor Law 241(6) cause of action, alleging debris as a slipping hazard, should not have been dismissed:
Dismissal was properly granted with respect to plaintiff’s Labor Law § 240(1) cause of action in that plaintiff alleged that he was injured while riding in one of the building’s elevators. In this case, the passenger elevator was not a safety device for protecting a construction worker from a risk posed by elevation as contemplated by Labor Law § 240(1) … .
The court erred, however, in dismissing that portion of plaintiff’s Labor Law § 241(6) claim to the extent the claim was predicated on violations of Industrial Code … . While there were no facts alleged to support a claim that plaintiff was injured as the result of a slipping hazard, plaintiff’s complaint, as supplemented by his affidavit in opposition to defendant’s motion, sufficiently alleged that debris was one of the causes of his fall … . Smith v Extell W. 45th St. LLC, 2016 NY Slip Op 07089, 1st Dept 10-27-16
LABOR LAW-CONSTRUCTION LAW (ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)/ELEVATORS (LABOR LAW, ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)