TUCKER v. TISHMAN CONSTRUCTION CORP. OF NEW YORK


36 A.D.3d 417 (2007)

828 N.Y.S.2d 311

THOMAS TUCKER et al., Appellants, v. TISHMAN CONSTRUCTION CORP. OF NEW YORK, Respondent, et al., Defendant. TISHMAN CONSTRUCTION CORP. OF NEW YORK, Third-Party Plaintiff-Respondent, v. MANHATTAN STRUCTURES, Third-Party Defendant, and BRAWNMADE CONSTRUCTION, Third-Party Defendant-Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided January 4, 2007.


The record establishes that the area where plaintiff fell was not a passageway subject to Industrial Code (12 NYCRR) § 23-1.7 (e) (1) but a work area subject to section 23-1.7 (e) (2) (see Canning v Barneys N. Y., 289 A.D.2d 32, 34 [2001]), and that there is no liability under the latter section because the rebar steel over which plaintiff tripped was an integral part of the work being performed, not debris, scattered tools and materials, or a sharp projection (cf. id. at 34-35; see Lenard v 1251 Ams. Assoc., 241 A.D.2d 391, 393 [1997]). Nor is there any evidence that the rebar was obstructing a passageway, such as might give plaintiff a claim under Industrial Code § 23-2.1 (a) (1) (see Scannell v Mt. Sinai Med. Ctr., 256 A.D.2d 214 [1998]; Motyka v Ogden Martin Sys. of Onondaga Ltd. Partnership, 272 A.D.2d 980, 981 [2000]). Section 23-2.1 (b), which expressly applies to debris, is likewise inapplicable as it is clear, from plaintiff's testimony, that the rebar over which he tripped was not debris. Industrial Code § 23-1.30, which pertains to illumination of work areas, is also unavailing, the record being "`insufficient to create an inference that the amount of lighting fell below the specific statutory standard'" (Carty v Port Auth. of N.Y. & N.J., 32 A.D.3d 732, 733 [2006], quoting Cahill v Triborough Bridge & Tunnel Auth., 31 A.D.3d 347, 349 [2006]). Plaintiff's motion to renew was properly denied for lack of facts that were unavailable at the time of the original motion, and because his affidavit in support was self-serving and conclusory (see William P. Pahl Equip. Corp. v Kassis, 182 A.D.2d 22, 27 [1992], lv denied in part and dismissed in part 80 N.Y.2d 1005 [1992]).


Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases