Opinion
2012-11-27
Charles RAFFA, Jr., Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent, U.R.S. Corporation, et al., Defendants.
Broderick & Broderick, Bayside (Patrick F. Broderick of counsel), for appellant. Greenblatt Lesser, LLP, New York (Gershon D. Greenblatt of counsel), for respondent.
Broderick & Broderick, Bayside (Patrick F. Broderick of counsel), for appellant. Greenblatt Lesser, LLP, New York (Gershon D. Greenblatt of counsel), for respondent.
TOM, J.P., SAXE, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered September 16, 2011, which granted defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, the motion denied as to plaintiff's claims of negligence and violation of Labor Law § 200, and otherwise affirmed, without costs.
Supreme Court should have denied that portion of the motion which sought dismissal of plaintiff's negligence and Labor Law § 200 claims against the City. Because the Labor Law § 200 and common-law negligence claims are based on a dangerous condition on the site, not on the methods or materials used in the work, the only issue is whether defendant City had notice of the condition, not whether it exercised supervisory control over the manner of performance of plaintiff's work ( Minorczyk v. Dormitory Auth. of the State of N.Y., 74 A.D.3d 675, 904 N.Y.S.2d 383 [1st Dept. 2010] ).
Plaintiff testified that he slipped while going from his car to a trailer and that, during the two days immediately before his accident, he had lodged multiple complaints to the foreman and superintendents about snow and/or ice covering that area. Two of his co-workers also testified that the area had been covered in a slippery sheet of ice four to six inches thick for about three days prior to plaintiff's accident. The day before plaintiff's accident, another worker slipped on ice, albeit at a different location within the work site, and the Department of Environmental Preservation's project manager, the “lead on-site” figure, testified that, if there was an accident, he would be notified via email. Viewing all of the evidence in a light most favorable to plaintiff, and drawing all reasonable inferences in his favor, as is required at this procedural posture ( see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ), a question of fact exists as to whether the City had actual or constructive notice of the icy condition that caused plaintiff's injury ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986];Callan v. Structure Tone, Inc., 52 A.D.3d 334, 860 N.Y.S.2d 62 [1st Dept. 2008];Lewis v. Lower E. Side Tenement Museum, 40 A.D.3d 438, 439, 836 N.Y.S.2d 582 [1st Dept. 2007] ).
Plaintiff's Labor Law § 241(6) claim was properly dismissed because the Industrial Code provisions set forth in the supplemental bill of particulars are not applicable. Here, the open, unpaved area where plaintiff was walking when he fell was not “a floor, passageway, walkway, scaffold, platform or other elevated working surface,” within the purview of 12 NYCRR 23–1.7(d) ( see Cook v. Orchard Park Estates, Inc., 73 A.D.3d 1263, 902 N.Y.S.2d 674 [3d Dept. 2010];Porazzo v. City of New York, 39 A.D.3d 731, 834 N.Y.S.2d 298 [2d Dept. 2007];Roberts v. Worth Constr., Inc., 21 A.D.3d 1074, 802 N.Y.S.2d 177 [2d Dept. 2005];Lawyer v. Hoffman, 275 A.D.2d 541, 711 N.Y.S.2d 618 [3d Dept. 2000] ). Nor was the area a floor, platform or similar area where people “work or pass,” and no “tripping hazard” is alleged, under 12 NYCRR 23–1.7(e)(2) ( see Cook, 73 A.D.3d 1263, 902 N.Y.S.2d 674;Scofield v. Trustees Of Union Coll., 288 A.D.2d 807, 734 N.Y.S.2d 262 [3d Dept. 2001] ).