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THE PROPERTY OWNER AND GENERAL CONTRACTOR FAILED TO DEMONSTRATE THAT THE INDUSTRIAL CODE PROVISION REQUIRING EMPLOYERS TO ENSURE THE FLOOR AT THE WORK SITE IS NOT SLIPPERY DID NOT APPLY TO THE FLOOR OF A TRUCK OWNED AND OPERATED BY A THIRD PARTY WHICH DELIVERED MATERIALS TO THE WORK SITE; HERE PLAINTIFF ALLEGED HE SLIPPED AND FELL ON OIL ON THE FLOOR OF THE TRUCK AS HE WAS ATTEMPTING TO UNLOAD IT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant property owner and general contractor were not entitled to summary judgment on the Labor Law 241(6) cause of action, even though plaintiff’s slip and fall was allegedly caused by oil on the floor of a truck used to deliver elevator components to the work site:

Habberstad [the property owner] and T.G. Nickel [the general managger] failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on 12 NYCRR 23-1.7(d) insofar as asserted against each of them. Section 23-1.7(d) of the Industrial Code provides that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.” Here, contrary to the Supreme Court’s conclusion, Habberstad and T.G. Nickel failed to make a prima facie showing that the floor of the truck on which the injured plaintiff was performing work was not the type of surface contemplated under section 23-1.7(d) … . Schutt v Dynasty Transp. of Ohio, Inc., 2022 NY Slip Op 01473, Second Dept 3-9-22

Practice Point: The Industrial Code provision requiring employers to ensure floors at the work site are not slippery may apply to the floors of trucks used to deliver material to the work site. Here the plaintiff alleged he slipped and fell on oil on the floor of a truck he was attempting to unload. The appellate court determined the property owner’s and the general contractor’s motions for summary judgment on the Labor Law 241(6) cause of action should not have been granted.

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