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Labor Law complaint dismissed on summary judgment: Circus worker sewing tent not engaged in “construction”

Zare v. City of New York, Supreme Court, Bronx County Index No. 308994/2009, August 31, 2012

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A Bronx court granted summary judgment for the City of New York on Labor Law section 240(1) and 241(6) claims brought by a circus employee. The plaintiff allegedly fell approximately eighteen (18) inches into an uncovered opening, located on a walkway/platform.

AGF&J partner Steven DiSiervi argued that the plaintiff’s accident was not the type of elevated risk that Labor Law section 240(1) was enacted to protect. Further, the plaintiff’s task at the time of the accident, sewing the circus tent, was not construction, excavation, demolition or renovation. On the Labor Law §241(6) claim, it was shown
that the plaintiff was unable to establish a violation of the New York Industrial Code that was the proximate cause of the accident, and that the plaintiff’s task at the time of the accident, sewing the circus tent, was not construction, excavation, demolition or renovation. At oral argument plaintiff conceded that he was unable to make a prima facie case under Labor Law section 200 and withdrew that claim.

The court held, “A 2-foot by 2-foot opening created by missing tile on a floor raised 18 inches over a sub-floor does not involve an elevation-related hazard of the type contemplated by § 240(1) nor is that opening of sufficient size or depth to warrant the protections of 12 NYCRR § 23-1.17(b)(1).”. The court dismissed the complaint in its entirety.