162373/14. Appeal No. 12304. Case No. 2020-01354.

188 A.D.3d 461 (2020)

131 N.Y.S.3d 887

2020 NY Slip Op 06394

Edward Kaufman et al., Respondents, v. Capital One Bank (USA) N.A. et al., Appellants.

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

Decided November 10, 2020.

Plaintiff, the only person working on a gut renovation project in a vacant building on the day of the accident, was allegedly pushing a dumpster with four wheels on a "ramped," "uneven" part of the floor leading to a "door saddle," in an attempt to move the dumpster out of the building through the front door, when one of the wheels became caught on the saddle, causing the dumpster to begin tipping over. Plaintiff was allegedly injured in the course of attempting to prevent the dumpster from falling. Viewed in the light most favorable to plaintiff as the opponent of summary judgment (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]), the account in his deposition testimony and his affidavit raised issues of fact as to whether the door saddle caused his accident. "Plaintiff's deposition testimony is not irreconcilable or wholly inconsistent with [his] affidavit" (Clemente v 205 W. 103 Owners Corp., 180 A.D.3d 516, 517 [1st Dept 2020]). Although he was unable to say with certainty at his deposition what caused his accident because he could not see the door saddle while he was pushing the dumpster, in light of his statement that there was nothing else on the floor in that vicinity, and consistent with the photos and his testimony, his affidavit drew a reasonable inference that the wheel got stuck on the door saddle (see Tiles v City of New York, 262 A.D.2d 174 [1st Dept 1999]).

Even if defendants preserved their argument that the Labor Law § 241(6) claim should be dismissed because plaintiff's conduct was the sole proximate cause of his accident, we reject it on the merits.

Defendants failed to meet their initial burden of establishing the inapplicability of Industrial Code § 23-1.7(e)(1) and (2). Paragraph (1) applies not only when a hazard directly causes a worker to trip or slip, but also under the circumstances of this case, where an object being pushed by plaintiff allegedly became stuck on an obstruction, causing it to tip over and injure plaintiff (Sancino v Metropolitan Transp. Auth., 184 A.D.3d 534, 535 [1st Dept 2020]). Moreover, "the doorway constitutes a passageway within the meaning of the regulation" (McCullough v One Bryant Park, 132 A.D.3d 491, 492 [1st Dept 2015]).

In addition, defendants failed to establish the absence of issues of fact as to whether the accident was caused by a "sharp projection[]" (Industrial Code § 23-1.7[e][2]), which this Court has defined to "include any projection that is `sharp' in the sense that it is clearly defined or distinct" (Lenard v 1251 Ams. Assoc., 241 A.D.2d 391, 393 [1st Dept 1997], appeal withdrawn 90 N.Y.2d 937 [1997]). It is also clear that the accident occurred in an area "where persons work or pass" (Industrial Code § 23-1.7[e][2].)


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