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THE APPLICABLE INDUSTRIAL CODE PROVISION APPLIES TO MORE THAN JUST THE OBSTRUCTION OF PASSAGEWAYS; IT ALSO APPLIES TO BUILDING MATERIAL WHICH IS NOT PROPERLY STORED AND SECURED (AND FALLS); PLAINTIFF’S LABOR LAW 241 (6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) cause of action should not have been dismissed in this falling object case. Plaintiff was struck by a component of an unbuilt mail box which fell:

Plaintiff’s Labor Law § 241 (6) claim is predicated on 12 NYCRR 23-2.1 (a) (1), which provides in relevant part that “[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare” … . Contrary to defendants’ assertion, the scope of 12 NYCRR 23-2.1 (a) (1) is not limited exclusively to obstructed thoroughfares … . Rather, the plain text of the regulation creates three distinct obligations and potential sources of liability: first, “[a]ll building materials shall be stored in a safe and orderly manner”; second, “[m]aterial piles shall be stable under all conditions”; and third, “[m]aterial piles shall be . . . so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare” … . …

… [W]e agree with plaintiff that the mailbox component at issue qualifies as a “building material[]” within the meaning of 12 NYCRR 23-2.1 (a) (1), and we further agree with plaintiff that triable issues of fact exist regarding the “safe[ty] and orderl[iness]” of the “manner” in which defendants “stored” that “building material[].” Slowe v Lecesse Constr. Servs., LLC, 2021 NY Slip Op 01887, Fourth Dept 3-26-21

 

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