Messina v. City of New York
| Decision Date | 17 December 2002 |
| Citation | 752 N.Y.S.2d 608,300 A.D.2d 121 |
| Court | New York Supreme Court — Appellate Division |
| Parties | THOMAS MESSINA et al., Respondents,<BR>v.<BR>CITY OF NEW YORK et al., Appellants. |
Plaintiff Thomas Messina, an electrician employed by Penn Electric Co., suffered injuries to his leg when, in the course of performing electrical work on the roof of Yankee Stadium, he inadvertently stepped backwards into an unguarded, open drainpipe hole that measured approximately 12 inches in diameter and 7 to 10 inches deep. Messina and his spouse subsequently brought this action for damages under Labor Law §§ 200 and 241 (6) against the City of New York, which owns Yankee Stadium, and New York Yankees, an Ohio partnership, and The New York Yankees (collectively the Yankees), which operate and control Yankee Stadium pursuant to a master lease agreement with the City. The Yankee defendants moved for summary judgment dismissing the complaint. Supreme Court initially denied the motion to the extent it sought dismissal of the section 200 claim but granted it with respect to the section 241 (6) cause of action. On plaintiffs' subsequent motion for reargument, Supreme Court also denied defendants' motion with respect to the section 241 (6) claim, holding that whether the drainpipe hole into which Messina stepped was a "hazardous opening" within the meaning of section 23-1.7 (b) (1) of the Industrial Code (12 NYCRR)— and, thus, a violation of section 241 (6)—was a question of fact for jury determination, making summary judgment on the section 241 (6) claim inappropriate. Defendants, as limited by their brief, appeal only from the court's ruling on the section 241 (6) claim.
Labor Law § 241 (6) requires building owners and contractors to "provide reasonable and adequate protection and safety" for workers involved in building construction, excavation or demolition and to comply with safety rules and regulations promulgated by the State Commissioner of Labor (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502). To assert a sustainable cause of action under section 241 (6), a plaintiff "must allege a violation of a concrete specification of the [Commissioner's regulations in the] Industrial Code" (Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232).
In support of the section 241 (6) claim plaintiffs rely in the Court solely on section 23-1.7 (b) (1) of the Industrial Code (12 NYCRR 23-1.7 [b] [1] [i]).[*] That section provides in pertinent part as follows:
The regulation does not define "hazardous opening." The interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court (see Penta v Related Cos., 286 AD2d 674, 675; Millard v City of Ogdensburg, 274 AD2d 953; Stasierowski v Conbow Corp., 258 AD2d 914; Cardenas v American Ref-Fuel Co., 244 AD2d 377; cf. Piccuillo v Bank of N.Y. Co., 277 AD2d 93, 94 []). Thus, Supreme Court erred in holding that whether the drainpipe hole into which plaintiff stepped was a "hazardous opening" within the meaning of the Industrial Code was a question of fact for the jury to decide.
Reading the regulation as a whole, it is clear that it was not intended to apply to the type of opening involved in this case. As its heading reflects, 12 NYCRR 23-1.7 (b) establishes rules for protection against "[f]alling hazards." The safety measures required—planking installed below the opening, safety nets, harnesses and guard rails—all bespeak of protections against falls from an elevated area to a lower area through openings large enough for a person to fit (see e.g. Alvia v Teman Elec. Contr., 287 AD2d 421, 423, lv dismissed 97 NY2d 749; D'Egidio v Frontier Ins. Co., 270 AD2d 763, 765, lv denied 95 NY2d 765). In Piccuillo v Bank of N.Y. Co. (277 AD2d 93, 94), we affirmed Supreme Court's dismissal of a section 241 (6) claim, holding that an electrical wiring "hand-hole" that was virtually identical in diameter and depth to the drainpipe opening in ...
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...Court has defined the term "hazardous opening" as an opening "large enough for a person to fit" into ( Messina v. City of New York, 300 A.D.2d 121, 123, 752 N.Y.S.2d 608 [2002] ). Contrary to the motion court's statement, there is no requirement that a plaintiff relying on this rule fall to......
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Lamela v. City of New York, CV-06-5366(BMC)(SMG).
...is covered by a regulation is a question of law for the court." Wojcik, 386 F.Supp.2d at 454-55; Messina v. City of New York, 300 A.D.2d 121, 123, 752 N.Y.S.2d 608 (1st Dep't 2002). In making that determination, both the parties and conditions at the site must fall within the class to which......
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In re World Trade Ctr. Lower Manhattan Disaster Site Litig.
...Industrial Code provision is a proper basis for section 241(6) liability is a question of law. See Messina v. City of New York, 300 A.D.2d 121, 121, 752 N.Y.S.2d 608 (1st Dep't 2002). Plaintiffs argue that their injuries were caused by violations of several applicable provisions of Part 23 ......
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In re World Trade Ctr. Lower Manhattan Disaster Site Litig.
...Industrial Code provision is a proper basis for section 241(6) liability is a question of law. See Messina v. City of New York, 300 A.D.2d 121, 121, 752 N.Y.S.2d 608 (1st Dep't 2002). Plaintiffs argue that their injuries were caused by violations of several applicable provisions of Part 23 ......