PLAINTIFF TRIPPED OVER A PIECE OF PLYWOOD COVERING A SMALL HOLE; DEFENDANT DID NOT DEMONSTRATE THAT IT LACKED CONSTRUCTIVE NOTICE OF THE CONDITION; THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 200 cause of action should not have been dismissed. Plaintiff alleged he tripped and fell when his foot stuck a piece of plywood covering a hole. Defendant did not demonstrate a lack of constructive notice of the condition:

… [T]he defendant failed to show, prima facie, that it lacked constructive knowledge of the alleged dangerous condition … since it did not submit any evidence that the plywood was a latent defect that could not have been discovered upon a reasonable inspection … . Therefore, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 200. Freyberg v Adelphi Univ., 2023 NY Slip Op 05589, Second Dept 11-8-23

Practice Point: Labor Law 200 causes of action are analyzed under standard negligence principles. Even though the Labor Law 241(6) cause of action was properly dismissed because the Industrial Code provision did not apply to the plywood covering a small hole, the Labor Law 200 cause of action should not have been dismissed because the defendant simply did not address it. To warrant dismissal the defendant was required to demonstrate it did not have constructive knowledge of the alleged tripping hazard.