Torres v. Triborough Bridge & Tunnel Auth. , 2021 NY Slip Op 02619 ( 2021 )

Torres v Triborough Bridge & Tunnel Auth. (2021 NY Slip Op 02619)

Torres v Triborough Bridge & Tunnel Auth.

2021 NY Slip Op 02619

Decided on April 29, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 29, 2021
Before: Kapnick, J.P., Moulton, Scarpulla, Mendez, JJ.

Index No. 154199/16 Appeal No. 13710 Case No. 2020-04905

[*1]Joseph Torres, Plaintiff-Appellant,

v

Triborough Bridge and Tunnel Authority, et al., Defendants-Respondents.

Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for appellant.

Pillinger Miller Tarallo, LLP, New York (Mary Ellen O'Brien of counsel), for respondents.

Order, Supreme Court, New York County (Laurence L. Love, J.), entered July 24, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on his Labor Law § 241(6) cause of action and granted defendants' cross motion for summary judgment dismissing the claim, unanimously affirmed, without costs.

The court properly concluded that the area where plaintiff fell did not constitute a passageway as contemplated by Industrial Code (12 NYCRR) § 23-1.7(e)(1) (see Muscarella v Herbert Constr. Co., 265 AD2d 264 [1st Dept 1999]). The court also properly concluded that Industrial Code § 23-1.7(e)(2) was inapplicable, since the demolition debris resulted directly from the ongoing work being performed, which plaintiff had been assigned to clean up, and thus constituted an integral part of that work (see Solis v 32 Sixth Ave. Co. LLC, 38 AD3d 389, 390 [1st Dept 2007]; Cabrera v Sea Cliff Water Co., 6 AD3d 315, 316 [1st Dept 2004]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 29, 2021