Hecker v. State

Memorandum: Claimant commenced this action seeking damages for injuries he sustained based upon, inter alia, defendant’s alleged violation of Labor Law § 241 (6). Claimant’s employer had contracted with defendant to perform rehabilitation work on an historic lift bridge, but several months after the work was completed it became necessary to replace defective components in the lift mechanism 30 feet below the ground. Claimant was shoveling snow from the diamond plate decking at the corner of the bridge in order to access the pit door when he slipped and fell onto his back. The Court of Claims granted defendant’s motion for summary judgment dismissing the claim, which alleged various violations of the Labor Law and common1262 law negligence, but the sole issue before us on appeal is whether the court properly granted the motion insofar as defendant sought dismissal of the Labor Law § 241 (6) claim to the extent that it is premised on the violation of 12 NYCRR 23-1.7 (d). That regulation requires that an employer “shall not suffer or permit any employee to use a floor, passageway, [or] walkway . . . which is in a slippery condition. Ice, snow, [and] water. . . which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” We agree with claimant that the court erred in relying upon Gaisor v Gregory Madison Ave., LLC (13 AD3d 58 [2004]) in determining that snow removal was an integral part of claimant’s work and thus that he could not allege a violation of Labor Law § 241 (6) based on that regulation in connection with injuries he sustained while removing the snow. Instead, we conclude that, “[e]ven if snow removal fell within the scope of [claimant’s] responsibilities, such would only be relevant in determining comparative fault, and would not require a grant of summary judgment in defendant’s] favor” (Booth v Seven World Trade Co., L.P., 82 AD3d 499, 502 [2011]). We nevertheless affirm the order on other grounds. Although the parties do not specifically address, on appeal, the issue whether 12 NYCRR 23-1.7 (d) applies to the facts herein, claimant’s bill of particulars and cross motion alleged the applicability of the regulation and claimant appealed from the entire order, including that part denying his cross motion. Under the circumstances of this case, we conclude that we may review the applicability of the regulation to the facts herein and, upon such review, we conclude that the record establishes that it does not apply. Although claimant had shoveled sidewalks to reach the corners of the bridge where he would access the subterranean work site, and the pit door through which he would access the work site was located in a sidewalk, we conclude that claimant was not using the area in which he fell as a floor, passageway or walkway at the time of his fall (see Hertel v Hueber-Breuer Constr. Co., Inc., 48 AD3d 1259 [2008]; Bale v Pyron Corp., 256 AD2d 1128 [1998]; cf. Sullivan v RGS Energy Group, Inc., 78 AD3d 1503 [2010]). All concur except Centra and Garni, JJ., who dissent and vote to modify in accordance with the following memorandum.