Justice may be blind. But New York’s labor laws governing personal injury are crystal clear.

In Fonck v City of New York, the plaintiff appealed an order of the Supreme Court, Kings County, issued on November 13, 2017.

The injured plaintiff, Charles Fronck (and his wife) had commenced an action to recover damages for personal injuries against the City of New York, the owner of the property, and the Commodore Construction Corp., a prime contractor working on the project. Fronck alleged violations of Labor Laws and common-law negligence

The plaintiff had performed work at a construction project on a public pool located in Brooklyn. This entailed placing and tying rebar in a grid pattern on top of plastic sheeting in what would become the "beach," or sprinkler, area of the pool. While Fonck was retrieving his pliers, which were located five feet away, the plaintiff allegedly tripped on a piece of pipe concealed underneath the plastic sheeting, causing him to fall and sustain injuries.

The defendants sought summary judgment dismissing the Labor Law and common-law negligence causes of action. And in an order dated November 13, 2017, the Supreme Court, inter alia, granted the defendants' motion.

To prevail on a cause of action alleging a violation of the Labor Laws, a plaintiff must establish the violation of a specific and concrete provision of the Industrial Code, and that such violation was a proximate cause of his or her injuries

On October 20, 2021, the Appellate Division, Second Department, reaffirmed the Kings County Supreme Court’s ruling of November 13, 2017, that the spot where the plaintiff fell did not constitute a passageway. The New York Codes, Rules and Regulations citation was inapplicable to the facts of this case, as the pipe and vapor barrier over which the plaintiff tripped were not "debris" or "scattered" materials, but rather had been intentionally installed and were a "permanent and an integral part of what was being constructed."