Boggs v. City of New York
Summary of the case Boggs v. City of New York
The Appellate Division, First Department, affirmed the order of the Supreme Court, New York County, which denied the City of New York's motion for summary judgment in a case alleging violation of Labor Law § 241(6). The court found triable issues of fact regarding the location of the accident and adequacy of lighting at the work area.
Key Issues of the case Boggs v. City of New York
- Violation of Labor Law § 241(6)
- Adequacy of lighting at work area
Key Facts of the case Boggs v. City of New York
- Decedent was struck and killed by a train.
- Coworker testified that lighting was insufficient to read a newspaper.
Decision of the case Boggs v. City of New York
Affirmed
Opinions
| Boggs v City of New York |
| 2016 NY Slip Op 00310 |
| Decided on January 19, 2016 |
| 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 on January 19, 2016
Tom, J.P., Friedman, Saxe, Kapnick, JJ.
16713 105017/08
v
The City of New York, Defendant-Appellant.
Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellant.
Rappaport, Glass, Levine & Zullo, LLP, New York (Alexander J. Wulick of counsel), for respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered April 9, 2015, which, in this action alleging, inter alia, violation of Labor Law § 241(6), denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The record presents triable issues of fact as to where the accident happened and whether there was adequate lighting at the subject work area in accordance with Industrial Code (12 NYCRR) § 23-1.30. The decedent's coworker, who was with decedent at the time he was struck and killed by a train, testified that the banker lights from the express southbound track and the lights from the subway station were approximately 50 feet away from the accident location, and that the ambient lighting at the accident location did not provide enough light to read a standard newspaper (see Hernandez v Columbus Ctr., LLC, 50 AD3d 597, 598 [1st Dept 2008]). The coworker's affidavit cannot be regarded as merely a self-serving allegation, because it can be reconciled with his prior testimony (see e.g. Kalt v Ritman, 21 AD3d 321, 323 [1st Dept 2005]). Contrary to defendant's contention, 12 NYCRR 23-1.30 is applicable, since this section requires lighting that provides a minimum of 10 foot-candles of illumination in any area where persons are required to work, and there is no dispute that the accident occurred where construction work was being performed (see Lucas v KD Dev. Constr. Corp., 300 AD2d 634 [2d Dept 2002]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 19, 2016
CLERK