Plaintiff, an employee of Reicon/Reinauer, was injured while aboard a barge, leased by his employer, performing work in furtherance of the excavation, rehabilitation and repair of the Con Edison-leased East 14th Street Pier. While assisting a coworker open a sliding door, plaintiff stepped onto plywood covering a hole in the center of the barge, the plywood slid from under him and he fell into the hole. Plaintiff received federal workers’ compensation benefits under the Longshore and Harbor Workers’ Compensation Act ([LHWCA] 33 USC § 901 et seq.).
In this action, plaintiff alleges both state Labor Law and federal LHWCA violations. It is plain, since the accident occurred in navigable waters and plaintiff, an LHWCA-covered
Partial summary judgment as to liability in favor of plaintiff on his Labor Law § 240 (1) claim was appropriate. Plaintiff, while engaged in work necessary and incidental to the excavation and repair of the East 14th Street Pier, was exposed to a gravity-related risk without being provided proper safety devices (see Campisi v Epos Contr. Corp., 299 AD2d 4 [2002]).
Also correct was the motion court’s denial of summary judgment dismissing plaintiffs Labor Law § 241 (6) claim. Contrary to appellants’ contention, Industrial Code (12 NYCRR) § 23-1.7 (b) (1), requiring that every hazardous opening into which a person may step or fall be guarded by a substantial cover fastened in place or by a safety railing, is sufficiently concrete in its specification to support the claim (see Messina v City of New York, 300 AD2d 121, 122 [2002]; O’Connor v Lincoln Metrocenter Partners, L.P., 266 AD2d 60, 61-62 [1999]; Boss v Integral Constr. Corp., 249 AD2d 214, 215 [1998]).
As to plaintiffs Labor Law § 200 and common-law negligence claims, material issues of fact exist as to whether Con Edison was, in consequence of its construction manager’s inspection of the barge prior to the accident, on notice of the alleged hazard, and thus as to whether it is answerable for failing to remedy the hazard and maintain a safe workplace (see Dilena v Irving Reisman Irrevocable Trust, 263 AD2d 375, 376 [1999]; Higgins v 1790 Broadway Assoc., 261 AD2d 223 [1999]).
The LHWCA, which works as a strict liability statute, is the
With respect to the indemnity cross claims, the LHWCA does not foreclose actions for indemnity so long as the claim is based on contract or an implied right to indemnification (Pennisi, 206 AD2d 290, 293 [1994]). However, an explicit indemnification clause entitling appellants to the indemnification they seek does not exist, and appellants’ right to indemnification by implication has not been established at this juncture.
We have considered appellants’ remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Ellerin, Nardelli and Sweeny, JJ.
