In Jerez v. Tishman Constr. Corp. of N.Y. (decided June 24, 2014), the Appellate Division, First Department held that plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim:
Plaintiff, a carpenter, made a prima facie showing of his entitlement to judgment as a matter of law on the issue of defendants’ liability under Labor Law § 240(1). Indeed, he submitted evidence that he was injured while working at the construction of the new World Trade Center building when the brace he had secured his lanyard to gave way, causing him to fall 14 feet to the plywood floor below. In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. Indeed, defendant Port Authority’s witness plainly testified that plaintiff was not provided with two lanyards for 100% fall protection.
Since plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim, the court found it unnecessary to address plaintiff’s remaining claims under Labor Law 200, Labor Law § 241(6), or OSHA article 1926.
It nevertheless noted that if it reached those claims, it would have held that while the lower court properly dismissed plaintiff’s Labor Law 200 and OSHA article 1926 claims, it should have granted plaintiff summary judgment on his 241(6) claim (which was based on a violation of Industrial Code (12 NYCRR) § 23-1.16(b).
(b) Attachment required. Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. Such attachments shall be so arranged that if the user should fall such fall shall not exceed five feet.
The court held:
[Industrial Code § 23-1.16(b)] is sufficiently specific to warrant the imposition of liability. Further, the record demonstrates that the regulation was violated, as the “approved safety belt or harness” was not “properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline”, and the attachments plaintiff was using were clearly not arranged to prevent him from falling more than five feet.