When building the memorial and museum at the site of the former World Trade Center, the WTC Foundation assigned part of the construction work to a subcontractor. In February of 2010, a laborer for the subcontractor – who resided in the United States on an F1 student visa – was instructed to carry a nine-by-two-foot plywood panel weighing more than 100 pounds to an adjacent area of the construction site, which required him to walk over an area that was covered in snow and ice. The man slipped on the snow and ice and fell, sustaining injuries. The man filed a suit against the WTC Foundation and the subcontractor to recover damages for personal injuries, alleging violations of Labor Law §241(6), predicated on certain provisions of the Industrial Code relating to slipping hazards.
After depositions and discovery, plaintiff moved for summary judgment on the issue of liability on his Labor Law § 241(6) cause of action. The lower court granted the plaintiff’s motion, holding that defendants were liable for his accident and injuries. The lower court held that the plaintiff's affidavit sufficiently established that he was instructed to perform work, which included carrying large panels on the subject platform, even though there were areas on the platform covered with snow and ice, and that, as a result, he slipped and fell and sustained injuries. The Court also held that defendants failed to point to any admissible evidence demonstrating the existence of a triable issue of fact, or demonstrating any defense to vicarious liability.
Defendants also filed a motion to disclose some confidential information about plaintiff's immigration status since generally such information can be relevant to evaluation of the lost wages. The lower court denied defendants’ motion. Defendants appealed.
On appeal, the Second Department affirmed the lower court’s decision. The Second Department explained that as predicate for liability pursuant to Labor Law §241(6), plaintiff alleged that he was injured as a result of a snow and ice condition that was permitted to remain on the worksite in violation of a provision of the Industrial Code 12 NYCRR 23-1.7(d). That section of the Industrial Code unequivocally directs that ice and snow “shall be removed” from worksites so as “to provide safe footing.” The duty imposed is nondelegable. The Court pointed out that even the contract between defendants provided that subcontractor “shall remove snow or ice from the project site.” The plaintiff's testimony at his deposition and his averments in his affidavit established that he slipped and fell as a result of the snow and ice at the location where he was performing the tasks assigned to him. Moreover, the Second Department held that plaintiff also demonstrated his freedom from comparative fault, as he was following his employer's directives, using the equipment provided, and wearing proper shoes as required by his employer. Furthermore, the Court stated that since an owner or contractor's vicarious liability under Labor Law §241(6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure is also irrelevant to the imposition of Labor Law §241(6) liability.
The Second Department also held that defendants were entitled to obtain copies of plaintiff’s passport and visa, but not authorization for records kept by the Department of Homeland Security, since plaintiff admitted that he was at that time in the United States on an F-1 student visa, rather than claiming citizenship or green card status. The Second Department reasoned that a motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome. A disclosure request is palpably improper if it seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case.
Accordingly, the Second Department upheld the lower court’s decision and remanded the case to the lower court for further proceedings.