Victor Caminito was employed by a nonparty subcontractor on a 30-story building under construction that was ultimately going to be a condominium with retail space on the first floor.  On the day of the accident, plaintiff spent the morning setting marble in the lobby of the building. After lunch, he was instructed by the project supervisor for the construction site, to clear out a room that was off the lobby, where many of the trades had stored their equipment and materials.  In the process of removing material stored in it, plaintiff was injured when, while walking backwards with a wheelbarrow, he tripped and fell over a stack of metal studs located on the floor.

In Caminito v Douglaston Dev., LLC, the plaintiff brought suit under Labor Law § 241(6) and claimed specific violations of the Industrial Code.  That statute imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations” contained in the New York State Industrial Code.

Plaintiff’s claim was predicated on Industrial Code (12 N.Y.C.R.R.) § 23-1(e)(2), which provides, in pertinent part, that work areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials”.  The room where plaintiff fell was variously described as approximately 10′ X 15′ or 20′ X 40′ and had only one entrance/exit. Both plaintiff and the project supervisor testified at their depositions that the material in the room needed to be removed to complete its construction. The project supervisor testified that this room was part of the overall building construction project.

Defendants moved for summary judgment to dismiss the Labor Law § 241(6) claim.  Defendants argued that the area where plaintiff fell was not a “work area” but rather a storage room and thus not a work area as defined by the statute.   The Court disagreed finding a question of fact as to whether the studs were scattered in plaintiff’s work area.

The testimony of both plaintiff and the project supervisor clearly stated that construction was going to take place in that room. Indeed, the purpose of removing the material stored in that room was to enable the construction work to take place. Although plaintiff was not actually performing his job as a marble setter at the time of the accident, under these circumstances his activities bring him within the ambit of the statute.

Defendants have to be aware that scattered tools and building materials on a construction site presents a difficult fact pattern to overcome when analyzing liability under Labor Law § 241(6).

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at