In an action to recover damages for personal injuries, the plaintiff filed an Appeal from a Judgment of the Supreme Court, Westchester County, dated March 28, 2019. The Judgment was granted following entry of an Order, which granted the defendants' Motion for Summary Judgment dismissing the cause of action as to the alleged violation of Labor Law §241(6), granting the defendants' Motion for Summary Judgment, and against the plaintiff, dismissing that cause of action.
The plaintiff was employed by non-party, Skanska E.C.C.O. III, a general contractor hired by the defendant Metro-North Railroad for the Harmon Shop Replacement Project (hereinafter “the project”). The project involved the construction of two two-story buildings. On August 19, 2016, the plaintiff was working on the premises of the subject project location, performing welding work on one of the partially completed buildings. On that date, the plaintiff used an aerial lift to ascend to the second floor of the building and perform work on the roof. The plaintiff finished his work for the day at 3:00 p.m., descended to the ground floor, and put away his equipment. After realizing that he left his car keys on the second floor of the building, the plaintiff used the aerial lift to ascend to the second floor, retrieved his keys, and got back into the lift. However, when the plaintiff attempted to use the lift to descend to the ground floor, the lift "release[d]" and the plaintiff's head "slammed" into the railing of the lift's basket, which caused plaintiff to allegedly sustain injuries as a result thereof.
Thereafter, in February 2017, the plaintiff commenced an action to recover damages for personal injuries against the defendants, alleging, inter alia, a violation of Labor Law §241(6). In August 2018, the defendants moved for summary judgment dismissing the complaint, and the plaintiff opposed the defendants' motion. In an order dated January 15, 2019, the Supreme Court, among other things, granted that branch of the defendants' Motion for Summary Judgment dismissing the Labor Law §241(6) cause of action. The court subsequently issued a Judgment dated March 28, 2019, in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff Appealed the Court’s Judgment as it relates to the dismissed cause of action under Labor Law §241(6).
On Appeal, the Appellate Division, in the Second Judicial Department, affirmed the Supreme Court’s Judgment, holding that the defendants established, prima facie, that the plaintiff was not engaged in any of [*2] the enumerated activities protected by Labor Law §241(6) at the time of his accident because the defendants presented competent evidence that the subject accident occurred after the plaintiff and his coworker had completed the entirety of their work for the day (see Feinberg v Sanz, 115 AD3d 705, 706; Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 753; see also Robinson v National Grid Energy Mgt., LLC, 150 AD3d 910, 913; Ferenczi v Port Auth. of N.Y. & N.J., 34 AD3d 722). Moreover, plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Therefore, the Supreme Court properly granted that branch of the defendants' Motion for Summary Judgment dismissing the Labor Law § 241(6) cause of action.