Decision and Order

In this action alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), defendants Metropolitan Transportation Authority and New York City Transit Authority move for summary judgment dismissing the complaint. Plaintiffs oppose the motion and cross-move for summary judgment in their favor on the issue of defendants' liability under Labor Law § 241 (6).

Defendants assert that Martinez did not trip, but rather injured his back while lifting the wood, because Martinez did not previously mention that he had tripped in either an accident report, in statements that he purportedly made to his supervisor, or at his statutory hearing. An accident report purportedly signed by Martinez states, in pertinent part: "While Lifting a 3x10 Plank felt a sharp pain in my Lower back" (Beattie Affirm., Ex G.) At his statutory hearing, Martinez was asked, "Can you tell me how this accident happened?" (Beattie Affirm., Ex D, at 19.) Martinez answered (through a Spanish interpreter), "We were moving some pieces of wood. When I lift [sic] the wood was to[o] heavy. I felt pain in my back. Then I threw away the wood that I was holding. After that I couldn't work anymore." (Id.)

The complaint asserts two causes of action: the first cause of action alleges violations of Labor Law §§ 200, 240 (1) and 241 (6). In the second cause of action, Martinez's wife asserts a derivative cause of action for loss of services.

Plaintiffs have discontinued the action as against defendant 835 Avenue of the Americas, L.P. (Shafran Affirm., Ex A.) The remaining defendants move for summary judgment dismissing the complaint. Plaintiffs cross-move for summary judgment in their favor on the issue of defendants' liability under Labor Law § 241 (6).

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action."

Defendants argue that neither Labor Law § 240 nor Labor Law § 241 applies to this action, and that plaintiffs' Labor Law § 200 and common-law negligence claims should be dismissed because defendants neither supervised nor controlled Martinez's work, and because they had no [*3]actual or constructive notice of the allegedly dangerous condition.

So much of the first cause of action alleging a violation of Labor Law § 240 (1) is dismissed. Labor Law § 240 (1) imposes a non-delegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites who sustain injuries proximately cause by that failure (Jock v Fien, 80 NY2d 965, 966 [1992].) Here, Martinez testified at his deposition that his alleged accident occurred at street level, on the sidewalk. (Martinez EBT, at 148.) Inasmuch Martinez's alleged injuries did not result from a fall from a height, or from a falling object that was being hoisted or that was inadequately secured, Martinez was not exposed to any gravity-related elevation risks which called for any of the protective devices of the types listed in Labor Law § 240 (1). (Rocovich v Consolidated Edison, 78 NY2d 509, 514 [1991].) Therefore, Labor Law § 240 (1) does not apply here.

As to Labor Law § 241 (6), the statute provides:

"All contractors and owners and their agents, . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein . . . .the commissioner may make rules to carry into effect the provisions of this subdivision . . . ."

This statute creates a non-delegable duty for owners, general contractors and their agents to

comply with the provisions of the New York State Industrial Code. (Ross v Curtis-Palmer Hydro Elec. Co., 81 NY2d 494, 501-503 [1993].) Here, plaintiffs allege that defendants violated 12 NYCRR 23-1.7 (e).

12 NYCRR 23-1.7 (e) requires owners and general contractors to keep certain areas free of tripping hazards. It states, in pertinent part:

"(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."

Defendants assert that Martinez's deposition testimony that he tripped and fell should be disregarded, insofar as it purportedly contradicts prior accounts of his accident and Martinez's testimony at the statutory hearing, which do not mention that Martinez tripped and fell. At his deposition, Martinez explains that he did not mention that he tripped and fell to others because he was never asked if he fell. (See Martinez EBT, at 131 [" I never told him because he never asked me if I fell or not."], 157 ["If the [sic] don't ask me, I don't have to answer anything"].)

"On a motion for summary judgment, the court's function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact." (Martin v Citibank, N.A.,64 AD3d 477, 478 [1st Dept 2009].) "The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned." (Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968].) Here, defendants have not demonstrated that Martinez's EBT testimony was clearly feigned. The prior out-of-court accounts of Martinez's alleged accident are unsworn statements, some of which were made through a nonparty.

As defendants indicate, the Appellate Division, Second Department ruled that the deposition testimony of a plaintiff was insufficient to defeat a motion for summary judgment, because it contradicted earlier testimony given at a General Municipal Law § 50-h hearing. (Mallory v City of New Rochelle, 41 AD3d 556, 557 [2d Dept 2007]). However, it would appear that the Appellate Division, First Department has ruled that the inconsistencies between testimony at a statutory hearing and deposition testimony raise a triable issue of fact. (Francis v New York City Tr. Auth., 295 AD2d 164, 165 [1st Dept 2002]["Inconsistencies between plaintiff's deposition testimony and his section 50-h testimony eight years earlier . . raise issues of credibility that should also be left for trial"].) In any event, defendants have not demonstrated, as a matter of law, a clear factual inconsistency between Martinez's statutory hearing testimony and his deposition testimony. The purported inconsistency is based on an omission in his testimony. Therefore, the fact that Martinez did not mention that he tripped and fell to others, in a situation where one might have expected him to volunteer such information, presents an issue of fact as to Martinez's credibility for the trier of fact.

The Court agrees with defendants that 12 NYCRR 23-1.7 (e) (1) does not apply because Martinez's alleged accident did not occur within a "passageway." Martinez testified at his deposition that the accident took place on the sidewalk on Sixth Avenue, at a corner of the sidewalk at its intersection with West 30th Street. (Martinez EBT, 59-60.) Because Martinez was undisputedly outdoors, and therefore in an open area, his accident did not occur in a "passageway" covered by 12 NYCRR 23-1.7(e)(1). (See e.g. Smith v Hines GS Props., Inc., 29 AD3d 433, 433 [1st Dept 2006][The open area between the building under construction and the materials storage trailers was not a passageway]; Dalanna v City of New York 308 AD2d 400, 401[1st Dept 2003][common, open area not a passageway]; Rose v A. Servidone, Inc., 268 AD2d 516, 517 [2d Dept 2000][open-area construction site on the side of Route 59 not a passageway covered under 12 NYCRR 23-1.7 (e) (1)].)

12 NYCRR 23—1.7(e)(2) requires that areas where persons work or pass be kept "free from accumulations of . . . debris and from . . .materials . . . insofar as may be consistent with the work being performed." (emphasis supplied.) The provision is inapplicable if the materials or the debris [*5]over which the claimant alleges he tripped "was an integral part of the construction." (O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805, 806 [2006].) Thus, the provision is inapplicable to any debris which "resulted directly from the . . .work plaintiff and his co-worker were performing." (Solis v 32 Sixth Ave. Co. LLC, 38 AD3d 389, 390 [1st Dept 2007]; Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 790 [2d Dept 2008]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2d Dept 2003]; Harvey v Morse Diesel Intl., 299 AD2d 451, 453 [2d Dept 2002].) Neither does the provision apply to any debris which the worker is required to remove as part of his or her job. (Marinaccio v Arlington Cent. School Dist., 40 AD3d 714 [2d Dept 2007]; Cabrera v Sea Cliff Water Co., 6 AD3d 315 [1st Dept 2004].)

With respect to materials, the provision does not apply to materials intended to be used as part of the construction. (Verel v Ferguson Elec. Constr. Co., Inc., 41 AD3d 1154, 1157 [4th Dept 2007][worker tripped over electrical pipe and conduits]; Burkoski v Structure Tone, Inc., 40 AD3d 378, 383 [1st Dept 2007][worker tripped over stack of floor tiles]; Tucker v Tishman Constr. Corp. of NY, 36 AD3d 417 [1st Dept 2007][worker tripped over rebar steel].)

Here, Martinez testified at his deposition that a foreman said "You have to move all this wood to the area where the rest of the wood was located." (Martinez EBT, at 71.) Martinez was asked, "How many different pieces of wood were there, approximately, that Louis [the foreman] told you to move?" He answered, "There were many pieces, small pieces, big pieces, pieces of 2-by-4 and things like that, everything." (Id. at 73.) When asked if some of the pieces were wood scraps left over from the carpenters, Martinez answered, "Yes." (Id. at 74.) Martinez testified that he injured himself when he went to get a second piece of wood: "I picked up the wood and I put it on my back, so when I started to walk, I tripped with the wood that I had on and from that, I wasn't able to do anything." (Id. at 77). He further testified:

"A. I tripped, I tripped. I tripped with the leftovers of the wood.

Q. And you trip [sic] over a piece of wood?

A. Yes.

Q. And that was a leftover?

A. Yes, it was debris that they had there, pieces of wood. It was lots of pieces."

(Id. at 79.)

Deirdre Harvey, a field engineer for the New York City Transit Authority, testified at her deposition that she went to see Martinez after being informed that one of the laborers had strained his back (Beattie Affirm., Ex F, at 29, 60-62.) According to Harvey, Martinez was standing on West 30th Street, roughly a third of the way off of Sixth Avenue (Id. at63.) Harvey testified:

"Q. Did you take notice of any scraps of wood or smaller pieces of wood in the area?

A. I did not notice any smaller pieces, scraps [of wood]. Nothing stood out to me, at that time.

Q. Are you saying that you don't remember one way or the other or you specifically remember there were none?

A. I specifically remember nothing standing out to me, at the time."

Based on the deposition testimonies, it is unclear whether Martinez tripped on any debris or materials to be used during construction. Assuming, for the sake of argument, that Martinez tripped on debris, his testimony appears to indicate that the alleged debris did not result directly from the work that Martinez was performing. However, it is unclear whether Martinez was assigned the task to remove the debris, in addition to moving the large pieces of wood. Therefore, defendants have not demonstrated, as a matter of law, that 12 NYCRR 23-1.7 (e) (2) is inapplicable here.

Finally, defendants argue that Martinez was the sole proximate cause of the accident, in that Martinez purportedly testified at his deposition that he was aware of machines at the job site that could be used to lift heavy loads. However, defendants do not cite any page of his deposition testimony. As plaintiffs point out, Martinez testified to the contrary:

"Q. Was there any equipment of any kind to act as an alternative to moving this wood?

MR. GUZZARDO: Note my objection.

A. No.

Q. Were there any safety devices or anything that you would consider to be a safety device which was immediately available in the area, whether it be a pulley or a cart or anything like that, that you could have used to move this heavy piece of wood?

MR. GUZZARDO: Note my objection.

A. No, no, nothing."

Therefore, summary judgment dismissing plaintiffs' Labor Law § 241 (6) claim, based on a violation of 12 NYCRR 23-1.7 (e) (2), is denied. Plaintiffs' cross motion for summary judgment in their favor on the issue of defendants' liability under Labor Law § 241 (6) is also denied.

As to Labor Law § 200, which codifies the common law duty to provide workers with a safe place to work, the statute states, in pertinent part:

"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protection to all such persons."

Defendants contend that plaintiffs' common-law negligence and Labor Law § 200 claims must be dismissed because they did not supervise or control the work site and because they neither created the allegedly dangerous condition, nor had actual or constructive notice of the allegedly dangerous condition. Martinez testified that he received directions from "Schiavone Picone" people, and no one else outside that company gave him directions as to his job. (Martinez EBT, at 52.)

Because plaintiffs' Labor Law § 200 and common-law negligence claims are based on an allegedly dangerous condition of the work site, i.e., pieces of wood that were tripping hazards, rather than the method of Martinez's work, the only issue is whether defendants had notice of the condition. (Minorczyk v Dormitory Auth. of the State of NY, 74 AD3d 675 [1st Dept 2010]; Seda v Epstein, 72 AD3d 455 [1st Dept 2010]; Urban v No. 5 Times Square Dev., LLC, 553 AD3d 553, 556 [1st Dept [*7]2009]; Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004].)

Defendants maintain that there is no evidence that defendants were placed on notice of any condition of wood debris or any other debris, or that defendants had any constructive notice of any allegedly dangerous condition. (Beattie Affirm. ¶ 20.) However, to meet their initial burden on the issue of lack of constructive notice, defendants "must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." (Granillo v Toys "R" US, Inc., 72 AD3d 1024 [2d Dept 2010][citations omitted]; Colon v Bet Torah, Inc., 66 AD3d 731, 732 [2d Dept 2009]; Van Dina v St. Francis Hosp., Roslyn, New York, 45 AD3d 673, 674 [2d Dept 2007]; Soto-Lopez v Board of Mgrs. of Crescent Tower Condominium, 44 AD3d 846, 847 [2d Dept 2007].)

Therefore, summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims is denied.

Accordingly, it is hereby

ORDERED that defendants' motion for summary judgment is granted only to the extent that so much of the first cause of action that alleges a violation of Labor Law § 240 (1) is dismissed, and the motion is otherwise denied; and it is further

ORDERED that plaintiffs' cross motion for partial summary judgment in their favor on the issue of defendants' liability under Labor Law § 241 (6) is denied; and it is further

ORDERED that the remainder of the action shall continue.

Dated: August 9, 2011New York, New YorkENTER:

/s/

J.S.C.