The Fourth Department, overruling precedent, determined a fall from the first floor through an unguarded opening to the basement floor was a covered event under Labor Law 240 (1) and the unguarded opening violated a provision of the Industrial Code. The decision covers a number of other substantive issues (not summarized here) including statutory agent liability, Labor Law 200 and common law negligence liability, and indemnfication:
We agree with plaintiffs that the court erred in denying that part of their motion seeking partial summary judgment on liability on their Labor Law § 240 (1) claim and in granting, instead, those parts of the motion of Gates and cross motion of Nolan seeking dismissal of that claim against them. We therefore further modify the order by denying those parts of the motion and cross motion, reinstating that claim, and granting that part of plaintiffs’ motion. As a preliminary matter, we note that the court relied on our decision in Riley v Stickl Constr. Co. (242 AD2d 936) for its determination that a fall from the first floor through an unguarded opening to the basement is not a fall from an elevated worksite within the meaning of section 240 (1). To the extent that Riley stands for the proposition that a worker falling from the first floor to the basement is not protected by section 240 (1), that decision is no longer to be followed. Instead, we conclude that, because there was a “difference between the elevation level of the required work and a lower level” … , and “[b]ecause plaintiff fell through an opening in the floor, [plaintiffs are] entitled to judgment on liability under Labor Law § 240 (1)”… .
We further conclude that the court erred in denying that part of plaintiffs’ motion seeking summary judgment on the limited issue whether 12 NYCRR 23-1.7 (b) (1) was violated, and we therefore further modify the order accordingly. That regulation, which is sufficiently specific to support a cause of action under Labor Law § 241 (6) … , requires protection from hazardous openings. It is undisputed that the protective railings and the plywood cover had been removed from the stairwell opening and that plaintiff fell through the opening to the floor below. McKay v Weeden, 2017 NY Slip Op 02327, 4th Dept 3-24-17
LABOR LAW-CONSTRUCTION LAW (FALL FROM FIRST FLOOR TO BASEMENT FLOOR IS COVERED UNDER LABOR LAW 240(1), THE UNGUARDED OPENING VIOLATED A PROVISION OF THE INDUSTRIAL CODE)