In Carey v. Five Brothers, Inc., Carey, a subcontractor supervisor, delivered work equipment to his crew construction a new supermarket.  When returning to his truck, plaintiff fell partially through an open manhole atop a 10-foot-deep precast drainage vault.  The drainage vault had a metal collar for the manhole cover, which had been dislodged.  There was no information regarding when, how, or by whom the cover was dislodged.  In addition, there was snow on the ground where Carey was injured.  Plaintiff sued various parties for violations of New York Labor Law Labor Law §§ 240(1), 241(6), and 200.  All parties moved for summary judgment, but the lower court found issues of fact.  On appeal, the Second Department held, that it was error for the lower court to deny those branches of the defendants motions that sought dismiss of the Labor Law § 240(1) claims.  In making its ruling, the Second Department noted that although Carey’s injuries were allegedly the result of a fall, the injuries did not arise in the context of the “special hazards” against which the statute is designed to protect, namely, “the exceptionally dangerous conditions posed by elevation differentials at work sites.”  Similarly, the court dismissed the Labor Law § 241(6) claims because none of the regulations that the plaintiff were applicable to the facts.  Importantly, the Second Department upheld the position that not all falls from heights fall within the ambit of Labor Law 240(1).

However, the Second Department let plaintiff’s Labor Law § 200 claims remain, stating that the defendants failed to establish prima facie that they neither created nor had constructive notice of the allegedly dangerous condition presented by the dislodged collar and manhole cover.

Thanks to Lora Gleicher for her contribution to this post.