Conklin v Triborough Bridge & Tunnel Auth.
2008 NY Slip Op 02017 [49 AD3d 320]
March 11, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008

James Conklin, Appellant-Respondent,
Triborough Bridge and Tunnel Authority et al., Respondents-Appellants.

[*1] Sacks and Sacks, LLP, New York City (Scott N. Singer of counsel), for appellant-respondent.

Jones Hirsch Connors & Bull, P.C., New York City (Katina Despas-Barous of counsel), for respondents-appellants.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about December 18, 2006, which denied plaintiff's cross motion for summary judgment on his Labor Law § 240 claim, granted the portions of defendants' motion for summary judgment that sought to dismiss the Labor Law §§ 240 and 241 (6) claims, except insofar as the latter is predicated upon Industrial Code (12 NYCRR) § 23-1.7 (f), and denied the portion of defendants' motion that sought to dismiss the Labor Law § 200 claim against defendant Campbell Painting, unanimously modified, on the law, plaintiff's cross motion for summary judgment on his Labor Law § 240 claim granted, defendant's motion to dismiss that claim denied, and defendant's motion to dismiss the Labor Law § 241 (6) claim denied insofar as that claim is predicated upon Industrial Code (12 NYCRR) § 23-1.7 (d), and otherwise affirmed, without costs.

Plaintiff alleges that he was injured when he slipped on a "chicken ladder" or "makeshift ladder," consisting of two parallel wooden planks with two-by-fours nailed across them at regular intervals, which was placed on sloped ground to function as a ramp, and which provided the sole means of access to his employer's shanty. As a ramp, the "chicken ladder" presented a risk covered by Labor Law § 240, and the record demonstrates that defendants' failure to equip it with a handrail or other safety device was the proximate cause of plaintiff's injuries (see McCann v Central Synagogue, 280 AD2d 298, 299-300 [2001]). We note that plaintiff's untimely cross motion was not improperly considered, since it sought relief on the same issues as were raised in defendants' timely motion (see Altschuler v Gramatan Mgt., Inc., 27 AD3d 304, 304-305 [2006]).

Plaintiff's Labor Law § 241 (6) claim predicated upon Industrial Code (12 NYCRR) § 23-1.7 (f) was properly sustained, because the ramp, which is alleged to have been unsafe, provided a means of access to different working levels. The claim predicated upon section 23-1.7 (d) should have been sustained because the ramp constituted a passageway alleged to have been covered in a slippery substance. Plaintiff slipped not on muddy ground but on mud covering the cross-pieces of the ramp. The remaining Labor Law § 241 (6) claims were properly dismissed.

Plaintiff's Labor Law § 200 claim was properly sustained as against Campbell, the general contractor, who constructed and maintained the "chicken ladder" alleged to have been [*2]constantly in a muddy and slippery state (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]). Concur—Tom, J.P., Buckley, Sweeny and Moskowitz, JJ.