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PLYWOOD DELIBERATELY PLACED AS A TEMPORARY FLOOR DOES NOT CONSTITUTE “DIRT AND DEBRIS” OR “SCATTERED TOOLS AND MATERIALS” OR “SHARP PROTECTIONS” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THEREFORE PLAINTIFF’S STEPPING IN A HOLE IN THE PLYWOOD AND FALLING IS NOT COVERED BY LABOR LAW 241(6) (FIRST DEPT). ​

The First Department determined Supreme Court properly dismissed the Labor Law 241(6) cause of action because the plywood used for temporary flooring, which had a hole in it which caused plaintiff to fall, was not “dirt and debris” or “scattered tools or materials” or “sharp projections” within the meaning of the Industrial Code:

… Industrial Code (12 NYCRR) § 23-1.7 (e) (2), … provides:

“Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”

On its face, section 23-1.7(e)(2) does not apply to all potential tripping hazards but only to “accumulations of dirt and debris,” “scattered tools and materials,” and “sharp projections.” As plaintiff admitted in his deposition testimony, the perforated plywood board on which he tripped had been deliberately placed on the stripped floor as a protective measure, in response to plaintiff’s own complaints. Thus, as a matter of law, the plywood board, notwithstanding its hole, could not be described as an “accumulation[] of . . . debris” or as part of a “scatter[ing]” of “tools and materials” … . Accordingly, as a matter of law, the plywood board did not fall within the scope of Industrial Code § 23-1.7(e)(2). Cioppa v ESRT 112 W. 34th St., L.P., 2024 NY Slip Op 05482, First Dept 11-7-24

Practice Point: Plywood placed as a temporary floor does not constitute “dirt and debris” within the meaning of the Industrial Code. Therefore stepping in a hole in the plywood and falling is not covered by Labor Law 241(6).

 

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