Plaintiff, in this Labor Law case, seeks summary judgment on the issue of liability. He supports his motion by stating that:

On November 23, 2007 he was taken to 1930 Fulton Street, Brooklyn, Kings County, by his three employers to do a taping job. (Taping involves covering up the joints between sheet rocks used for walls or ceilings to facilitate painting and to give the wall a seamless look.)

While he had worked for his employers, OGC Construction, Inc., (OGC) for about a year, November 23, 2007 was his first day on this particular job.

He was assigned to work on one of the upper floors of the four story building. At lunch time, when he announced that he was going to lunch, he was told by one of his bosses to go to the first floor and wait for him so that the four of them could all go to lunch together. (OGC is [*2]owned by plaintiff's boss and his two co-workers)

At some point during the wait, while on the first floor, he talked to one of his co-workers and was walking to go talk to his other co-worker when he fell from the first floor to the basement. He fell through an opening that had been made in the floor for the installation of a set of stairs and a door to the basement. There was no electricity in the building except for portable lights, which had not been set up on the first floor. He suffered serious injuries. There were no guardrails or any other kind of barriers or warnings around the cut-out to prevent anyone from falling through.

The building that was being installed was a new construction owned by Defendants 1930 Fulton, LLC (1930) with Defendants Bellagio Developers, Inc. (Bellagio) and Albert Khorsandi & Associates, Inc. (Khorsandi) as general contractors.

He argues , does plaintiff, that 1930 admitted ownership of the building and that Bellagio and Khorsandi are either "the general contractors and/or the owner's agent." Continuing, he states that the defendants, as owners and contractors or owner's agents, did not provide him with the safety protections mandated by Labor Law 240(l) and were, in addition, in violation of Labor Law 200 in that they were negligent in causing his fall.

As to the time of his injuries, plaintiff argues that the fact that he was not actually working on the assigned task, but was about to go to lunch when he fell, did not place him outside the parameters of Labor Law 240(l).

1930, in a cross motion, seeks dismissal of the complaint and cross claims on the ground that at the time of the fall, plaintiff was not conducting any activity which fell under the dictates of Labor Law 240, ie. lunch periods and talking about football during that period are not covered by Labor Law 240. It adds that it did not direct or control plaintiff's work, nor did it create or have actual or constructive notice of the defect.

Khorsandi also opposes plaintiff's motion. At the outset, he asserts there are "factual issues" which should lead to denial of the motion. First, he is of the view that he was not the general contractor, adding that at no time did he have the "right or duty" to act as a general contractor in that he did not hire or had any say in how the subs conducted their work.

He points out that the only job he did at the site was metal framing. That job, he says, lasted for two weeks, with three of his employees doing the work. Other than getting the permits for the job, he had no connection to or with the owners.

Bellagio, in its opposition to the summary judgment motion, contends that it was an independent contractor whose main purpose was to be a "consultant to Khorsandi on issues [*3]involving protocol at the site."

Further, says Bellagio, it had no signs or permit in its name at the site. Bellagio also pointed out that the accident occurred on November 23, 2007, the Friday after Thanksgiving, and the job site had been closed since the Wednesday before Thanksgiving. Bellagio also makes the argument that plaintiff was on his lunch break at the time of the accident and therefore was not covered under the statute.

Under Labor Law, Section 240(i) contractors, owners and their agents are required to

furnish or erect, or cause to be furnished or erected...scaffolding, hoists, stays, ladders...and other device which shall be so constructed, placed and operated as to give proper protection

to workers who are employed at the work site.

The statute makes owners and contractors liable for violations of Labor Law, Section 240(l) whether they do or do not supervise or control the work being done. Blake v. Neighborhood Housing Service of NY City, 1NY3d 280; Ross v. Curtis Palmer, 81NY2d 494. To prevail, movant must show that there was a violation and that the violation was the proximate cause of his injuries. Gorden v. Easter Ry. Supply, 82 NY2d 555.

Here, notwithstanding defendants' claims to the contrary, this court is of the view that plaintiff has shown that the dark, unprotected and unguarded opening in the first floor was the proximate cause of his injury.

Defendants have not denied that there was an opening in the first floor; nor have they denied that there was no electricity in the building and that the building was dark except for the portable lighting provided by the workers or by light from the sun. Additionally, they have not denied that the hole in the floor was unprotected in that there were no warnings, barriers, tape or any kind of safety/protective devices around the opening in the floor to warn of the danger. And certainly, plaintiff was injured.

The primary objection defendants have to plaintiff's motion is that at the time of the accident, he was on his lunch hour and was walking toward another worker to talk about football. Thus, say defendants, plaintiff falls outside the confines of the statute.

The general rule is that lunch time, where the employer does not direct or control lunch hour activity, does not subject the employer to liability. See Carnegie v. J.P. Phillips, Inc., 28 [*4]AD3d 599; State Farm Ins. Co. V. Central Parking System, Inc., 18 AD2d 859. There are, however, exceptions. Here, the court is of the view that this case falls within the exception.

Plaintiff had determined to take a lunch break. When he informed his boss of his intent, the boss asked him to wait so that they could go together. Plaintiff did. While plaintiff was not working at the time of his fall, the assertion can and may be made that, but for his boss's request, he would not have been in the building at the time he fell.

Further, in determining whether an activity is personal or work related, the circumstances of the accident must be based on case specific facts. See Matter of Richardson v. Fielder Roofing, 67 NY2d 246. Traditionally, courts have liberally constructed the labor laws, which are designed for the protection of workers. See Melber v. 6333 Main Street, 91 NY2d 759.

Finally, the conflicting views of their role and status at the job site by Khorsandi and Bellagio shows that there are questions of fact.

Therefore, upon review, plaintiff's motion on the issue of liability is granted. The specific facts of this case show that he was not yet on his lunch hour.

Dated: March 26, 2010

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J.S.C.