| Konopczynski v ADF Constr. Corp. |
| 2009 NY Slip Op 02040 [60 AD3d 1313] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Todd Konopczynski, Appellant, v ADF Construction Corp.,Respondent. |
—[*1] Augello & Matteliano, LLP, Buffalo (Joseph A. Matteliano of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), enteredNovember 27, 2007 in a personal injury action. The order granted defendant's motion forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in part and reinstating the Labor Law § 200 and common-lawnegligence claims and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained when he tripped and fell in a depression in the floor atthe work site. There were approximately 132 depressions built into the flooring so that the floorcould be adjusted or relocated by lifting hooks and then used as an earthquake simulator.Supreme Court properly granted that part of defendant's motion for summary judgmentdismissing the claim pursuant to Labor Law § 241 (6), which is premised on defendant'salleged violation of 12 NYCRR 23-1.7 (e). It is undisputed that the depressions in the floor werepermanently embedded so that the floor could serve as a "shake table," and we thus agree withdefendant that the regulation does not apply to this case because the alleged tripping hazard was" 'an integral part of the construction' " (Verel v Ferguson Elec. Constr. Co., Inc, 41 AD3d 1154, 1157[2007], quoting O'Sullivan v IDIConstr. Co., Inc., 7 NY3d 805, 806 [2006]; see Gist v Central School Dist. No. 1 ofTowns of Elma, Marilla, Wales, Lancaster & Aurora, Erie County, & Bennington, WyomingCounty, 234 AD2d 976 [1996]; Adams v Glass Fab, 212 AD2d 972, 973 [1995]).
We agree with plaintiff, however, that the court erred in granting those parts of defendant'smotion with respect to the Labor Law § 200 and common-law negligence claims, and wetherefore modify the order accordingly. A "defendant may bear responsibility under Labor Law§ 200 and for common-law negligence if it had 'actual or constructive notice of theallegedly dangerous condition on the premises which caused the . . . plaintiff'sinjuries, regardless of whether [it] supervised [plaintiff's] work' " (Riordan v BOCES of Rochester, 4AD3d 869, 870 [2004]; seeMilitello v New Plan Realty Trust, 16 AD3d 1092, 1093 [2005]). Here, defendant failedto meet its initial burden because it failed to establish that it had no constructive notice of theallegedly hazardous conditions in the floor. Indeed, by its own submissions, [*2]defendant established that the depressions were seven inches long,five inches wide and six inches deep, and that there were approximately 132 of these depressionsthroughout the floor, and its expert failed to address whether the condition of the floor wasreasonably safe. Although defendant contended that it was not aware of any previous injuries asa result of the depressions, it offered no evidence to support its contention that it was unawarethat workers at the site had repeatedly tripped in the holes, as testified to by plaintiff at hisdeposition. Contrary to defendant's further contention, "the open and obvious nature of theallegedly dangerous condition in this case 'does not negate the duty to maintain [the] premises ina reasonably safe condition but, [instead], bears only on the injured person's comparative fault' "(Verel, 41 AD3d at 1156). Present—Scudder, P.J., Martoche, Centra, Fahey andPeradotto, JJ.