In Vitale v. Astoria Energy II, LLC, the plaintiff was working as a surveyor on a construction site when he was instructed to verify the placement of anchor bolts across a rebar grid. The rebar grid was 5 feet high with square openings measuring at most 12 inches by 12 inches. The plaintiff stepped through one of the openings up to his groin and was allegedly injured.
On motions by the parties, the Supreme Court granted the defendants' cross motion to dismiss the plaintiff's Labor Law §240(1) claim. On appeal, the Second Department affirmed. The Court found that the openings in the grid were not large enough to have permitted plaintiff to fall through, and as such did not present an elevation-related hazard that required one of the statutory enumerated safety devices.
The Court likewise affirmed dismissal of the plaintiff's section 241(6) claim as predicated upon an alleged violation of Industrial Code 23-1.7 pertaining to "hazardous openings." Once again, the opening was not large enough for the plaintiff's entire body to completely fall through. As such, the Code did not apply under the circumstances.