Opinion
2003-03097.
Decided April 5, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated February 20, 2003, as granted those branches of the motion of the defendant Foundation Construction Consultants, the cross motion of the defendants City of New York and New York City Board of Education, and the cross motion of the third-party defendant West Construction Corporation which were for summary judgment dismissing the causes of action to recover damages under Labor Law § 200 and for common-law negligence.
Isaacson, Schiowitz, Korson Solny, New York, N.Y. (Martin Schiowitz of counsel), for appellants.
Epstein, Grammatico, Gann, Frankini Marotta, Woodbury, N.Y. (Dennis S. Heffernan of counsel), fbor defendants-respondents City of New York and New York City Board of Education.
Williamson Williamson, P.C., New York, N.Y. (Gary H. Forman of counsel), for defendant third-party plaintiff-respondent.
Baxter Smith, P.C., Jericho, N.Y. (Anne Marie Ladia of counsel), for third-party defendant-respondent.
Before: ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion and the cross motions which were for summary judgment dismissing the causes of action to recover damages under Labor Law § 200 and for common-law negligence are denied as premature, with leave to renew at the conclusion of discovery, and those causes of action are reinstated.
Contrary to the respondents' contention, the fact that the dangerous condition on which the plaintiff Peter Sportiello (hereinafter the plaintiff) allegedly slipped might have been open and obvious did not negate their duty to maintain the worksite in a reasonably safe condition, but rather, may raise an issue of fact concerning the plaintiff's comparative negligence ( see Cupo v. Karfunkel, 1 A.D.3d 48; Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923; Acevedo v. Camac, 293 A.D.2d 430, 431).
Since the respondents have not yet produced any witnesses for depositions, it was premature to grant summary judgment at this stage of the proceedings ( see CPLR 3212[f]; Destin v. New York City Tr. Auth., 303 A.D.2d 713; Rajan v. Insler, 300 A.D.2d 463).
FLORIO, J.P., SCHMIDT, MASTRO and RIVERA, JJ., concur.