11713. 159913/13.

184 A.D.3d 534 (2020)

124 N.Y.S.3d 534

2020 NY Slip Op 03615

Joseph Sancino, Appellant, v. Metropolitan Transportation Authority et al., Respondents, et al., Defendant.

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

Decided June 25, 2020.

Plaintiff was an ironworker who was attempting to move a wheeled dumpster over an unfinished floor covered in portions by plywood slabs. As he reached a lip in the plywood, he heard a crack, and felt what he believed to be one of the wheels breaking. The dumpster became off balance and began to topple over, and when another site worker attempted to help, the dumpster toppled over on to plaintiff, allegedly injuring his toe. Plaintiff commenced this action asserting causes of action under, inter alia, Labor Law § 241(6).

The motion court erred in dismissing so much of plaintiff's Labor Law § 241(6) claim premised upon violations of Industrial Code (12 NYCRR) §§ 23-1.28(b), 23-1.5(c) and 23-1.7(e)(2). Plaintiff's claim premised upon section 23-1.7(e) (2), which concerns debris in passageways, is viable because the area where the accident occurred was a passageway for the purposes of that provision (see Rossi v 140 W. JV Mgr. LLC, 171 A.D.3d 668 [1st Dept 2019]; Lois v Flintlock Constr. Servs., LLC, 137 A.D.3d 446 [1st Dept 2016]). The provision applies not just when loose debris causes a direct trip and fall, but also in circumstances similar to those involved here (see Picchione v Sweet Constr. Corp., 60 A.D.3d 510 [1st Dept 2009]).

With regard to section 23-1.28(b), which pertains to hand-propelled vehicles, and section 23-1.5(c), which prohibits use of machinery or equipment that is not in good repair and safe working condition, defendants failed to make a prima facie showing that the wheeled dumpster was not defective (see Ahern v NYU Langone Med. Ctr., 147 A.D.3d 537 [1st Dept 2017]; Picchione, 60 AD3d at 512; compare Ruggiero v Cardella Trucking Co., 16 A.D.3d 342 [1st Dept 2005]). Plaintiff's argument concerning the applicability of section 23-2.1(a) however, is unpersuasive, as the accident did not occur due to the methods of material storage.

This Court declines to consider plaintiff's arguments concerning Labor Law § 240(1), since he abandoned that claim by failing to oppose that aspect of defendants' motion (see Ng v NYU Langone Med. Ctr., 157 A.D.3d 549 [1st Dept 2018]; Josephson LLC v Column Fin., Inc., 94 A.D.3d 479 [1st Dept 2012]).


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