| Temes v Columbus Ctr. LLC |
| 2008 NY Slip Op 01399 [48 AD3d 281] |
| February 14, 2008 |
| Appellate Division, First Department |
| Barry Temes et al., Appellants, v Columbus Centre LLC etal., Respondents. |
—[*1] Fiedelman & McGaw, Jericho (Ross P. Masler of counsel), for respondents.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered October 26,2006, which granted defendants' motion for summary judgment dismissing the complaint,unanimously modified, on the law, to deny the motion insofar as addressed to the cause of actionunder Labor Law § 241 (6), that cause of action reinstated, and otherwise affirmed,without costs.
Plaintiff Barry Temes, while working for a contractor in a newly constructed building,allegedly slipped on a patch of ice covered by construction dirt and wrenched his hip. He testifiedthat at the time of the accident, he was returning to his work area from the men's room located onanother level, and was walking across a "big, open area" of the basement. On these facts, theclaim for alleged violation of Labor Law § 200 and common-law negligence was correctlydismissed in the absence of any evidence that defendants had actual or constructive notice of theparticular icy condition where the accident took place. However, the claim under Labor Law§ 241 (6) should be reinstated. The accident occurred on a "floor" within the meaning of12 NYCRR 23-1.7 (d), the provision of the Industrial Code concerning slipping hazards, and theevidence that plaintiff slipped on a patch of ice obscured by construction debris raises a triableissue as to whether "someone within the chain of the construction project was negligent in notexercising reasonable care, or acting within a reasonable time, to prevent or remediate thehazard" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 [1998]).Concur—Mazzarelli, J.P., Saxe, Friedman, Catterson and Acosta, JJ.