In Koba Mushkudiani v. Racanelli Construction Group, Inc., et al., an Appellate Division of the New York Supreme Court (“the Court”) affirmed summary judgment against the owner, general contractor, and developer of a construction project for violation of multiple New York Labor Laws. 2023 WL 5064219. Koba Mushkudiani (“Plaintiff”) was working on a construction site as a laborer for a window subcontractor when he sustained injuries after falling through an interior hole on the eighteenth floor of a construction site.

While preparing to load windows onto a dolly, Plaintiff stepped on a piece of plywood that covered a ventilation hole, which subsequently collapsed and caused injury to Plaintiff. Plaintiff brought a claim for personal injuries against X & Y Development Group, LLC (“X&Y”), the owner, Fleet Financial Group, Inc., (“Fleet”) the developer, and Racanelli Construction Group, Inc. (“Racanelli”), the general contractor (collectively, “Defendants”). Plaintiff alleged common law negligence and violations of New York Labor Law §§ 200, 240(1), and 241(6) and moved for summary judgment on all counts.

Summary judgement was granted against the Defendants in regard to Labor Law §§ 240(1) and 241(6). Labor Law § 240(1) requires owners, contractors, and their agents to provide workers with adequate protection from hazards related to elevation. Defendants argued Plaintiff was provided with proper protection, as Plaintiff had been given a harness to anchor himself to the structure and had been instructed on multiple occasions to use the harness. The Court disagreed with Defendants, stating that Plaintiff’s failure to attach his harness was not the sole proximate cause of his injuries, and Defendants provided no evidence showing that Plaintiff was required to use the harness in the interior area where the accident occurred.

The Court also addressed Labor Law § 241(6), which requires a construction site be constructed, guarded, operated, and conducted as to provide reasonable and adequate protection to persons therein. The Court relied on prior case law which established that in order to prevail on an action based on Labor Law § 241(6), “…a plaintiff must establish a violation of a specific safety regulation promulgated by the Commissioner of the Department of Labor.” Davies v. Simon Prop. Group, Inc., 174 A.D. 3d at 853, 107 N.Y.S. 3d 341; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y. 2d 494, 505, 601 N.Y.S. 2d 49, 618 N.E. 2d 82.

The Court noted Plaintiff’s cause of action was premised upon the violation of Industrial Code (12 NYCRR) § 23–1.7(b)(1)(i), which requires any hazardous opening which a person may step on or fall into shall be guarded by a substantial cover fastened in place or by a safety railing. The opening which Plaintiff fell through was covered only by a piece of plywood which was not fastened in place or protected by a safety railing, thus providing a basis for summary judgment against Defendants.

Although Defendants lost in regards to Labor Law §§ 240(1) and 241(6), the Court reversed summary judgment in regard to liability on the Labor Law § 200, a codified common law duty to provide a safe workplace, and common law negligence causes of action. The Court stated, to be held liable under § 200, the owner or general contractor must have had control over the work site and either created the dangerous condition which caused the injury or knew of the dangerous condition and failed to remedy it while having actual or constructive notice. Rodriguez v. HY 38 Owner, LLC, 192 A.D. 3d at 841, 143 N.Y.S 3d 411. Here, Plaintiff presented no evidence showing any Defendant had control of the work site or that any Defendant improperly covered any hole which Plaintiff fell through.

To avoid similar liability, New York Owners and General Contractors must be aware of all applicable labor laws and safety codes. Second, they must ensure their subcontractors are also aware of the applicable labor laws and safety codes. Third, they must take proper action to ensure the applicable labor laws and safety codes are complied with throughout the course of a Project.