LABOR LAW 240(1) DOES NOT APPLY TO SLIPPING ON A STAIRCASE STEP, THE PERMANENT STAIRCASE IS NOT A SAFETY DEVICE; PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO ADD AN INDUSTRIAL CODE VIOLATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) Labor Law 240(1) does not apply to slipping on a staircase step; and (2) plaintiff should have been allowed to amend the pleadings to assert a violation the Industrial Code in support of the Labor Law 241(6) cause of action:

“‘[L]eave to amend the pleadings to identify a specific, applicable Industrial Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant'” … . “Mere lateness is not a barrier” to amendment, absent prejudice … , which exists where the nonmoving party “has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position” … .

Here, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to amend the bill of particulars to allege a violation of 12 NYCRR 23-3.3(e) with regard to the Labor Law § 241(6) cause of action. The plaintiff made a showing of merit, the amendment presented no new factual allegations or new theories of liability, and the amendment did not prejudice the defendants. The defendants were put on sufficient notice through the complaint, the bill of particulars, and the plaintiff’s deposition testimony that the Labor Law § 241(6) cause of action related to the defendants’ alleged failure to provide proper safety devices, such as a chute or hoist, to be used in the removal of demolition debris from the building during demolition operations. * * *

… [D]efendants established, prima facie, that Labor Law § 240(1) was inapplicable to the facts of this case … . The permanent staircase from which the plaintiff fell was a normal appurtenance to the building and was not designed as a safety device to protect him from an elevation-related risk … . Verdi v SP Irving Owner, LLC, 2024 NY Slip Op 02721, Second Dept 5-15-24

Practice Point: A permanent staircase is not a safety device within the meaning of Labor Law 240(1).

Practice Point: Amendment of pleadings alleging a violation of Labor Law 241(6) to add the violation of an Industrial Code provision should generally be allowed, even if late.