Opinion
2013-04-9
John CUMBERLAND, Plaintiff–Appellant, v. HINES INTERESTS LIMITED PARTNERSHIP, et al., Defendants–Respondents. [And a Third–Party Action].
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for respondents.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for respondents.
TOM, J.P., MAZZARELLI, MOSKOWITZ, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 29, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241(6) claim, unanimously modified, on the law, the motion denied with respect to the claim based on an alleged violation of Industrial Code (12 NYCRR) § 23–1.7(e)(1), and otherwise affirmed, without costs.
Contrary to the motion court's conclusion, plaintiff's depositiontestimony raised an issue of fact as to whether he fell in a “passageway” or an open work area ( Costabile v. Damon G. Douglas Co., 66 A.D.3d 436, 885 N.Y.S.2d 602 [1st Dept. 2009]; compare O'Sullivan v. IDI Constr. Co., Inc., 28 A.D.3d 225, 225–226, 813 N.Y.S.2d 373 [1st Dept. 2006], affd.7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 [2006] ).
We agree with the motion court that Industrial Code (12 NYCRR) § 23–1.7(e)(2) does not apply because the pipe and pipe fittings over which plaintiff fell were not “debris,” but rather were “consistent with” the work being performed in the room Burkoski v. Structure Tone, Inc., 40 A.D.3d 378, 383, 836 N.Y.S.2d 130 [1st Dept. 2007]; Kinirons v. Teachers Ins. & Annuity Assn. of Am., 34 A.D.3d 237, 238, 828 N.Y.S.2d 293 [1st Dept. 2006] ).
We have considered plaintiff's remaining arguments and find them unavailing.