| DiSalvio v Young Men's Christian Assn. of City of N.Y. |
| 2008 NY Slip Op 04462 [51 AD3d 711] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Anthony DiSalvio, Respondent, v Young Men's ChristianAssociation of City of New York et al., Appellants. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forappellant Gerrett Painting Company, Inc. Parker Waichman Alonso LLP (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E.DiJoseph III], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Young Men's ChristianAssociation of City of New York and YMCA of Greater New York appeal, as limited by thenotice of appeal and brief, from so much of an order of the Supreme Court, Kings County(Schneier, J.), dated April 13, 2007, as denied those branches of their motion which were forsummary judgment dismissing the causes of action alleging a violation of Labor Law §200 and common-law negligence insofar as asserted against them, and the defendant GerrettPainting Company, Inc., separately appeals, as limited by its brief, from so much of the sameorder as denied those branches of its cross motion which were for summary judgment dismissingthe causes of action alleging a violation of Labor Law § 200 and common-law negligenceinsofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellants appearing separately and filing separate briefs.
In October 2003 the defendants Young Men's Christian Association of City of New York and[*2]YMCA of Greater New York (hereinafter together theYMCA) hired the defendant Gerrett Painting Company, Inc. (hereinafter Gerrett), to fix a leakysteam pipe at one of the YMCA's facilities, as well as the damage caused by the leak. Gerrettthen subcontracted the plumbing work to the plaintiff's employer.
On October 27, 2003, the plaintiff and his employer went to the YMCA's facility to fix thepipe, which was behind a cinder-block wall. In his affidavit, the plaintiff averred that, when heand his employer arrived to perform the work, a portion of the wall's base had already beenremoved, thereby allowing them access to the pipe. In addition, according to the plaintiff, whenhe and his employer performed the plumbing work, they did not perform "any work" on, or"further demolition" of, the wall.
After the pipe was replaced and tested for leaks, the plaintiff, who was sweeping up debris,allegedly was injured when the wall collapsed onto him. According to the affidavit of theplaintiff's expert engineer, that wall constituted an "extremely hazardous condition," in that it wasin danger of collapsing because it had been damaged by the steam leak, and moreover, alreadyhad part of its base removed.
The plaintiff subsequently commenced the instant personal injury action against the YMCAand Gerrett, alleging, inter alia, a violation of Labor Law § 200, as well as common-lawnegligence. The Supreme Court properly denied those branches of the YMCA's and Gerrett'sseparate motions which were for summary judgment dismissing these causes of action. Thesubmissions of the YMCA and Gerrett reveal that issues of fact exist, inter alia, as to whether theYMCA and Gerrett created a dangerous condition that caused the plaintiff's accident (see Linkowski v City of New York, 33AD3d 971, 974 [2006]; Oganessian v Eternal Mems., 305 AD2d 387, 388 [2003]).Fisher, J.P., Covello, Angiolillo and Belen, JJ., concur.