Opinion
5514 Index 23059/12
01-25-2018
Anthony LUCIANO, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant. Zaremba Brown, PLLC, New York (Brian Brown of counsel), for respondent.
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant.
Zaremba Brown, PLLC, New York (Brian Brown of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Tom, Gesmer, Singh, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 17, 2017, which granted plaintiff's motion for summary judgment as to liability on the Labor Law § 241(6) claim insofar as predicated on Industrial Code ( 12 NYCRR) § 23–1.7(d), unanimously modified, on the law, to the extent of directing a trial on the issue of comparative negligence, and otherwise affirmed, without costs.
Plaintiff's testimony that he slipped on water on the floor of the stairwell where he was working establishes prima facie a violation of Labor Law § 241(6) predicated on Industrial Code § 23–1.7(d) ("Slipping hazards"). In opposition, defendant, relying solely on speculative hearsay testimony (by another employee), failed to raise an issue of fact as to the way the accident occurred (see Ying Choy Chong v 457 W. 22nd St. Tenants Corp., 144 A.D.3d 591, 592, 42 N.Y.S.3d 116 [1st Dept. 2016] ; see also Marrero v. 2075 Holding Co. LLC, 106 A.D.3d 408 –409, 964 N.Y.S.2d 144 [1st Dept. 2013] ).
While the record demonstrates defendant's liability as a matter of law, an issue of fact exists as to negligence on plaintiff's part (see Long v. Forest–Fehlhaber, 55 N.Y.2d 154, 160, 448 N.Y.S.2d 132, 433 N.E.2d 115 [1982] ), which could result in an apportionment of liability (see Maza v. University Ave. Dev. Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149 [1st Dept. 2004] ; McLean v. Wical Realty Corp., 182 A.D.2d 554, 582 N.Y.S.2d 423 [1st Dept. 1992] ). Plaintiff testified that, as he entered the stairwell, he was looking up to determine the location of the box through which he was to run cable, and that, while carrying a ladder in one hand, he attempted to descend the staircase without looking at the stairs or the landing in front of him.