Opinion
14619 Index No. 156196/16 Case No. 2020-04412
11-16-2021
John DELEO et al., Plaintiffs-Appellants, v. JPMORGAN CHASE & CO., et al., Defendants-Respondents.
Arye, Lustig & Sassower, P.C., New York (Mitchell J. Sassower of counsel), for appellants. Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for respondents.
Arye, Lustig & Sassower, P.C., New York (Mitchell J. Sassower of counsel), for appellants.
Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for respondents.
Manzanet–Daniels, J.P., Kapnick, Mazzarelli, Moulton, Scarpulla, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered October 26, 2020, which granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment as to liability on the Labor Law § 241(6) claim, unanimously modified, on the law, to deny defendants’ motion as to the Labor Law § 241(6) claim and the Labor Law § 200 and negligence claims as against defendants Plaza Construction Group, Inc. and Plaza Construction LLC (together, Plaza), and otherwise affirmed, without costs.
The record presents an issue of fact as to whether the bottle cap that caused the injured plaintiff's slip-and-fall accident on the construction site was part of an accumulation of debris within the meaning of Industrial Code ( 12 NYCRR) § 23–1.7(e), on which the Labor Law § 241(6) claim is predicated (see generally Colucci v. Equitable Life Assur. Socy. of U.S., 218 A.D.2d 513, 514–515, 630 N.Y.S.2d 515 [1st Dept. 1995] [where the plaintiff slipped on food left on the floor of the work area he stated a claim based on a violation of Industrial Code § 23–1.7(e) ; cf. Vital v. City of New York, 43 A.D.3d 309, 310–311, 842 N.Y.S.2d 363 [1st Dept. 2007] [a transient sandwich wrapper on an exposed roof does not constitute an accumulation of debris under Industrial Code § 23–1.7 [e][2]).
Plaza failed to demonstrate, by submitting evidence of when the area was last cleaned or inspected before the injured plaintiff's accident, that the Labor Law § 200 and negligence claims should be dismissed as against it (see Ohadi v. Magnetic Constr. Group Corp., 182 A.D.3d 474, 476, 122 N.Y.S.3d 612 [1st Dept. 2020] ). Plaza presented only general testimony by its employees that the area was inspected daily and that debris was removed by laborers.