| Romeo v Property Owner (USA) LLC |
| 2009 NY Slip Op 02848 [61 AD3d 491] |
| April 14, 2009 |
| Appellate Division, First Department |
| Joseph Romeo, Appellant, v Property Owner (USA) LLCet al., Respondents. |
—[*1] Murphy & Higgins, LLP, New Rochelle (Richard S. Kaye of counsel), forrespondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered December 14, 2007,which granted defendants property owner and general contractor's motion to dismiss thecomplaint, and denied plaintiff's cross motion for summary judgment on his Labor Law §240 (1) claim, unanimously affirmed, without costs.
Plaintiff electrician's injury occurred when, while walking on a raised computer floor, hestepped on a floor tile that suddenly and unexpectedly dislodged, causing his right foot to fallthrough the two-foot-by-two-foot opening created by the missing tile and strike the concretesubfloor 18 inches below.
Plaintiff's claims pursuant to Labor Law §§ 200, 240 (1) and § 241 (6)were properly dismissed. As to the section 240 (1) claim, plaintiff's injury while walking on thepermanent floor did not involve an elevation-related hazard of the type contemplated by thestatute, and did not necessitate the provision of the type of safety devices set forth in the statute(see Geonie v OD & P NY Ltd., 50AD3d 444, 445 [2008]; Piccuillo v Bank of N.Y. Co., 277 AD2d 93, 94 [2000];D'Egidio v Frontier Ins. Co., 270 AD2d 763, 765 [2000], lv denied 95 NY2d 765[2000]). Plaintiff's section 200 claim and common-law negligence claim were unsupported byevidence to indicate that the owner and general contractor either had notice of the allegedhazardous tile condition or that they directly controlled and supervised the electrical work inquestion (see Geonie, 50 AD3d at 445; see also Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d 494, 505-506 [1993]). Plaintiff testified that the tile floor had appeareddefect-free during the five days he worked at the job site, and at all times prior to his accident.Further, plaintiff testified that his work instructions came only from a subforeman who, likeplaintiff, was employed by the electrical subcontractor.
Plaintiff's section 241 (6) claim was also properly dismissed for the reasons set forth inGeonie and D'Egidio. The "hazardous opening" provision (see IndustrialCode [12 NYCRR] § 23-1.7 [b] [1]), relied upon for the alleged section 241 (6) violation,was inapplicable, inasmuch as the "opening" in question and the 18-inch depth to the subfloordid not present significant depth and size to warrant the protection of the provision (see e.g.Messina v City of New York, 300 AD2d 121, 123-124 [2002]).
To the extent plaintiff also relied upon Industrial Code (12 NYCRR) § 23-1.7 (e) (2)(work [*2]area debris and tripping hazards) as a predicate for asection 241 (6) violation, such provision is inapplicable to the circumstances alleged here.Plaintiff was not injured as a result of tripping over, or even slipping on, "accumulat[ed]" debris,dirt, tools or materials. Concur—Saxe, J.P., Friedman, Sweeny, Acosta and Freedman, JJ.