GIZA v. NEW YORK CITY SCHOOL CONSTR. AUTH

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Docket Number

2004-07762.

Attorney(S)

Chesney Murphy, LLP, Baldwin, N.Y. (Michael F. Palmeri of counsel), for defendants third-party plaintiffs-appellants and third-party defendant-appellant. Samuel J. Lurie, New York, N.Y. (Dennis A. Breen and Robert R. MacDonnell of counsel), for respondent.

Judges

Peter B. Skelos

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ANDRZEJ GIZA, Respondent, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Defendant, and NEW YORK CITY BOARD OF EDUCATION et al., Defendants and Third-Party Plaintiffs-Appellants. NATIONAL ENVIRONMENTAL SAFETY COMPANY, INC., Third-Party Defendant-Appellant.

Ordered that the appeal by the defendant third-party plaintiff New York City Board of Education is dismissed as that appellant is not aggrieved by the order appealed from ( see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

Labor Law § 241 (6) "imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers" ( Comes v. New York State Elec. Gas Corp., 82 NY2d 876, 878; see Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 348; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; Dickson v. Fantis Foods, 235 AD2d 452). To recover on a cause of action alleging violation of Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards ( see Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 503-505). Here, the defendant City of New York established its prima facie entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 241 (6) based upon a violation of 12 NYCRR 23-1.7 (e) (2) insofar as asserted against it. The plaintiff, however, raised a triable issue of fact as to whether the warped piece of plywood that allegedly caused his accident was an integral part of his work ( see Castillo v. Starrett City, 4 AD3d 320; Harvey v. Morse Diesel Intl., 299 AD2d 451, 453) or was material which created a tripping hazard as defined in 12 NYCRR 23-1.7 (e) (2).

The remaining contentions of the City and the third-party defendant are without merit.

ANDRZEJ GIZA, Respondent, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Defendant, and NEW YORK CITY BOARD OF EDUCATION et al., Defendants and Third-Party Plaintiffs-Appellants. NATIONAL ENVIRONMENTAL SAFETY COMPANY, INC., Third-Party Defendant-Appellant.

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