Judge Andrew Carter
DeStefano worked for Consolidated Edison (ConEd). Under contract with ConEd, New Jersey-based MVN installed a soil erosion control system at DeStefano’s work site. The system comprised a metal silt fence held between two stakes placed in the ground, with hay bales directly against the fence. The bales and fencing ran perpendicular to preexisting concrete duct banks. DeStefano was hurt when, while stepping off a hay bale, his foot became caught in the silt fence and he fell onto a concrete duct bank. District court only partly granted MVN judgment in DeStefano’s lawsuit alleging work condition violations under New York Labor Law §§200 and 241(6). Summary judgment was granted as to DeStefano’s §200 claim and to that portion of his §241(6) claim grounded on §23-1.7(e)(1) of New York’s Industrial Code. As in Smith v. Hines GS Properties, there was no basis to conclude that the soil erosion system constituted a passageway. However, in noting that DeStefano could proceed under Industrial Code §23-1.7(e)(2) as a basis for his §241(6) claim the court observed that the soil erosion system’s inclusion of stakes above the hay bales presented a factual issue that the de facto pathway was not kept clear of sharp projections.
