# Alvia v. Teman Electrical Contracting, Inc.

> Appellate Division of the Supreme Court of the State of New York · October 1, 2001 · 287 A.D.2d 421

URL: https://www.frixlaw.com/law-library/cases/6078553

## Case

- **Full name:** Humberto Alvia v. Teman Electrical Contracting, Inc., and Parker East 72nd Associates, L.P., and Third-Party Plaintiffs-Respondents. Cosner Construction Corp., Third-Party Defendant-Respondent
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** October 1, 2001
- **Citations:** 287 A.D.2d 421; 731 N.Y.S.2d 462; 2001 N.Y. App. Div. LEXIS 9178
- **Precedential status:** Published
- **Opinion:** Concurring in part by Miller
- **Judges:** Miller
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6078553

## Opinion text

S. Miller, J.,
concurs in part and dissents in part, and votes to modify the order to grant that branch of the plaintiffs’ mo *424 tion which was for summary judgment on the issue of liability against Parker East and Parker based upon Labor Law § 241 (6), with the following memorandum: I disagree with my colleagues only insofar as they have upheld the Supreme Court’s dismissal of the plaintiffs’ causes of action predicated upon Labor Law § 241 (6). The Industrial Code regulation underlying the plaintiffs’ Labor Law § 241 (6) claims, 12 NYCRR 23-1.7 (b) (1), was expressly intended to protect workers from dangers posed by “[ejvery hazardous opening into which a person may step or fall” and requires that these openings be protected by “substantial covers” or that safety barriers be placed around them (12 NYCRR 23-1.7 [b] [1] [i], [ii] [emphasis added]). That regulatory command could not be more clear; every opening must be appropriately guarded. Here, the plaintiff Humberto Alvia fell into an unguarded opening and his injuries would have been prevented by a suitable cover (see, Gottstine v Dunlop Tire Corp., 272 AD2d 863 ). Therefore, the plaintiffs are entitled to summary judgment on the issue of liability on their Labor Law § 241 (6) claims.
Moreover, I do not agree with the majority insofar as it posits that this regulation is inapplicable to the comparatively small opening in issue. The specific subdivision of the regulation to which the majority cites is expressly applicable where workers are required to work close to the edge of a hazardous opening and does require substantial safety devices (12 NYCRR 23-1.7 [b] [1] [i], [iii]). However, the mere fact that one specific provision within the regulation may be tailored to larger openings, which undeniably pose greater dangers, does not negate the plain meaning of the unambiguous regulatory command that “every hazardous opening into which a person may step” must be covered. The regulation expressly applies to “every opening,” not just large ones!
On this point, neither D’Egidio v Frontier Ins. Co. ( 270 AD2d 763 ) nor Piccuillo v Bank of N. Y. Co. ( 277 AD2d 93 ), are controlling. Those decisions of the Appellate Division, Third and First Departments, respectively, determined that small trapdoor-like openings providing access to electrical wiring conduits were not the type of openings covered by 12 NYCRR 23-1.7 (b) (1). However, the opening in controversy in this case was larger than either of those in D’Egidio and Piccuillo , and it opened to the floor below; it was not just an access point to wiring located inches below the floor. Furthermore, it is of no consequence that Alvia did not fall all the way through the hole (see, O’Connor v Lincoln Metrocenter Partners, 266 AD2d 60 ; Robertti v Chang, 227 AD2d 542 ).
*425 Accordingly, the plaintiffs clearly established the violation of this Industrial Code provision and that such violation was the proximate cause of their injuries. Since the defendant owner and general contractor failed to raise an issue of fact in response to this showing, the plaintiffs are entitled to summary judgment on their cause of action pursuant to Labor Law § 241 (6) against those defendants (see generally, Rizzuto v Wenger Contr. Co., 91 NY2d 343 ; Lorefice v Reckson Operating Partnership, 269 AD2d 572 ).
While owners and general contractors are held absolutely liable under Labor Law § 241 (6) irrespective of their ability to supervise and control, subcontractors will only be held liable as agents upon obtaining the authority to supervise and control (see, Russin v Picciano & Son, 54 NY2d 311 ). Accordingly, while I would award partial summary judgment on the issue of liability in favor of the plaintiffs as against the owner, Parker East, and the general contractor, Parker, on the causes of action pursuant to Labor Law § 241 (6), the motion should be denied as against the electrical subcontractor, Teman, as there are issues of fact as to whether it was delegated any authority and control over the work so as to subject it to liability.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6078553. Public record. Not legal advice.