PLAINTIFF ALLEGEDLY TRIPPED ON DEBRIS AND FELL INTO A TWO-TO-THREE-FOOT-DEEP PIT FROM WHICH THE PLYWOOD COVER HAD BEEN REMOVED TRIGGERING POTENTIAL LIABILITY UNDER LABOR LAW 240(1) AND 241(6); ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT OF THE OWNER WITH SUPERVISORY AUTHORITY; TWO DEFENDANTS MAY BE LIABLE UNDER LABOR LAW 200 FOR THE DANGEROUS CONDITIONS; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversed Supreme Court and reinstated the complaint in this Labor Law 240(1), 241(6) and 200 action. Plaintiff’s decedent allegedly tripped on debris and fell into a two-to-three-foot deep pit from which the plywood cover had been removed:

… [P]laintiff has raised an issue of fact as to whether application of Labor Law § 240 governs this claim sufficient to defeat defendants’ various motions for summary judgment … .

… [P]laintiff raised issues of fact barring dismissal of the Labor Law § 241(6) cause of action, as Industrial Code §§ 23-1.7(e) and 23-1.30 may apply to circumstances of plaintiff’s accident. Plaintiff’s decedent testified that he tripped over debris in a passageway and then into a pit in an area that was arguably a work area … .

As to Baring’s liability under the Labor Law, it failed to establish that it is not a statutory agent for purposes of Labor Law §§ 240(1) or 241(6). Baring’s contract with Plaza delegated the authority to Baring to supervise and control the installation of kitchen equipment and obligated it to exercise such supervision over any of its subcontractors, such as decedent’s employer. That it may not have actually done so is not dispositive … .

With respect to the Labor Law § 200 and common-law negligence causes of action as against NYY Steak and Plaza, there is an issue of fact as to whether those defendants were on notice that the illumination at the site was insufficient … .. Plaintiff also adduced evidence of constructive notice as to the uncovered pit… . Devita v NYY Steak Manhattan, LLC, 2023 NY Slip Op 01257, First Dept 3-14-23

Practice Point: Plaintiff allegedly tripped on debris and fell into a two-to-three-foot-deep pit from which the plywood cover had been removed. Both Labor Law 240(1) and 241(6) were therefore implicated. One defendant may have been liable as a statutory agent of the owner with supervisory authority. Two other defendants may have been liable for the dangerous conditions, including inadequate lighting, pursuant to Labor Law 200.