December 2019

Leighton v. R.J.K. Electric Corp., et al. / Leighton v. Chaber, LLC (Supreme Court,
Queens County)

In related personal injury actions arising out of the same accident, we represented the
property owner and commercial tenant against whom plaintiff asserted Labor Law and
negligence claims. We moved for summary judgment on behalf of our clients and
plaintiff conceded that our clients were entitled to dismissal of the Labor Law § 200 and
common law negligence causes of action. Plaintiff’s opposition to our motion was
limited to his Labor Law § 241 (6) claims predicated on two specific provisions of the
Industrial Code of the State of New York. The court initially granted summary judgment
in our clients’ favor only as to one of the Industrial Code provisions, finding it
inapplicable to the facts of the case, but denied summary judgment as to the other
provision based on plaintiff’s argument that a question of fact existed as to whether
plaintiff was a worker or a passerby at the time of the accident. However, upon our
motion to reargue, the court granted reargument and granted summary judgment
dismissing the complaint entirely as against our clients. The court agreed with our
contention that if plaintiff is considered a construction worker at the time of the accident
then Industrial Code then Section 23-1.33 of the Industrial Code does not apply to him;
while on the other hand, if plaintiff is considered a passerby at the time of the accident
then he is not among the protected class of persons entitled to assert a Labor Law §
241 (6) claim.