| Riley v J.A. Jones Contr., Inc. |
| 2008 NY Slip Op 06817 [54 AD3d 744] |
| September 9, 2008 |
| Appellate Division, Second Department |
| David Riley, Appellant, v J.A. Jones Contracting, Inc.,Respondent. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forRespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated March3, 2007, as granted that branch of the defendant's motion which was for summary judgmentdismissing the cause of action pursuant to Labor Law § 241 (6) based on alleged violationsof 12 NYCRR 23-1.7 (d) and (e) (2).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion which was for summary judgment dismissing so much of the complaint assought to recover damages pursuant to Labor Law § 241 (6) based on a violation of 12NYCRR 23-1.7 (e) (2), and substituting therefor a provision denying that branch of the motion;as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, a bricklayer, allegedly was injured when he tripped on a brick while standingon an elevated scaffold where he was constructing a wall to replace one he had previously built.After the plaintiff's job superintendent realized he had instructed the plaintiff to construct theoriginal wall at the wrong height, the superintendent directed the plaintiff to demolish theoriginal wall and immediately begin rebuilding it at the correct height. The superintendent,allegedly to conceal his error, refused to allow the scaffold to be cleared before the plaintiffbegan constructing the replacement wall, and instead, directed the plaintiff to immediately erect areplacement wall [*2]using as many of the approximately 600bricks from the first wall as could be salvaged.
The Supreme Court properly awarded summary judgment to the defendant with respect to thealleged violation of 12 NYCRR 23-1.7 (d), which prohibits owners and contractors frompermitting a worker to use a scaffold when the working surface of the scaffold is in a slipperycondition. In opposition to the defendant's prima facie showing that it was entitled to judgment asa matter of law since the scaffold surface was not slippery, the plaintiff failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
However, the defendant failed to establish its prima facie entitlement to judgment as a matterof law regarding the alleged violation of 12 NYCRR 23-1.7 (e) (2), which requires owners andcontractors to maintain working areas free from tripping hazards such as, inter alia, debris andscattered materials "insofar as may be consistent with the work being performed" (12 NYCRR23-1.7 [e] [2]). Triable issues of fact exist as to whether the brick over which the plaintiffallegedly tripped was integral to the work being performed or was "debris" (Beltrone v Cityof New York, 299 AD2d 306, 308 [2002]; Lenard v 1251 Ams. Assoc., 241 AD2d391, 393-394 [1997]; cf. Dubin v S.DiFazio & Sons Constr., Inc., 34 AD3d 626 [2006]). Ritter, J.P., Miller, Dillon andMcCarthy, JJ., concur.