| Aguilera v Pistilli Constr. & Dev. Corp. |
| 2009 NY Slip Op 04843 [63 AD3d 763] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Maximiliano Ariel Aguilera, Respondent, v PistilliConstruction & Development Corp. et al., Defendants, and Tex Development Co., LLC,Appellant. |
—[*1] Lawrence B. Saftler, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Tex Development Co.,LLC, appeals from so much of an order of the Supreme Court, Queens County (Cullen, J.), datedFebruary 8, 2008, as, upon reargument, adhered to an original determination in an order of thesame court dated July 19, 2007, denying those branches of its motion which were for summaryjudgment dismissing the causes of action based on common-law negligence and Labor Law§§ 200 and 241 (6) insofar as asserted against it.
Ordered that the order dated February 8, 2008 is modified, on the law, by deleting theprovision thereof which, upon reargument, adhered to so much of the original determination inthe order dated July 19, 2007, as denied that branch of the motion of the defendant TexDevelopment Co., LLC, which was for summary judgment dismissing the Labor Law §241 (6) cause of action insofar as asserted against it to the extent it is based on a violation of 12NYCRR 23-1.7 (d) and substituting therefor provisions, upon reargument, vacating that portionof the original determination and thereupon granting so much of that branch of the motion; as somodified, the order dated February 8, 2008 is affirmed insofar as appealed from, with costs to theplaintiff.
The defendant Tex Development Co., LLC (hereinafter Tex), owned a warehouse that it wasconverting into residential apartment units. Tex retained the defendant Pistilli Construction &Development Corp. (hereinafter Pistilli) to act as the general contractor for the conversion andrenovation. Pistilli subcontracted with Faro Construction Group, Inc. (hereinafter Faro), toperform carpentry work on the building. The plaintiff was employed by Faro as a carpenter.
The plaintiff allegedly slipped on debris while walking down a staircase from the work siteon the fourth floor to a lower level. The plaintiff commenced this action against Tex, Pistilli, andFaro, alleging causes of action based, inter alia, on common-law negligence and Labor [*2]Law §§ 200 and 241 (6). After granting Tex's motionfor reargument, the Supreme Court adhered to its original determination denying those branchesof its motion which were for summary judgment dismissing the causes of action based oncommon-law negligence and Labor Law §§ 200 and 241 (6) insofar as assertedagainst it. Tex appeals.
The Supreme Court properly denied those branches of Tex's motion which were forsummary judgment dismissing the causes of action based on common-law negligence and LaborLaw § 200. Labor Law § 200 codifies the common-law duty of an owner orcontractor to provide employees with a safe place to work (see Comes v New York StateElec. & Gas Corp., 82 NY2d 876, 877 [1993]; Peay v New York City School Constr. Auth., 35 AD3d 566, 567[2006]; Paladino v Society of N.Y. Hosp., 307 AD2d 343, 344 [2003]). Where aplaintiff's injuries stem from a dangerous condition on the premises, "a property owner is liableunder Labor Law § 200 when the owner created the dangerous condition causing an injuryor when the owner failed to remedy a dangerous or defective condition of which he or she hadactual or constructive notice" (Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]; Ortega v Puccia, 57 AD3d 54[2008]; Smith v Cari, LLC, 50AD3d 879, 880 [2008]). Here, a pile of debris allegedly constituted a defective condition onthe premises. Tex failed to establish, prima facie, that it lacked constructive notice of the allegeddefect (see Mikhaylo v Chechelnitskiy,45 AD3d 821 [2007]; Keatingv Nanuet Bd. of Educ., 40 AD3d 706, 709 [2007]). Since Tex failed to meet its primafacie burden with regard to those branches of its motion seeking to dismiss the plaintiff'scommon-law negligence and Labor Law § 200 causes of action, the sufficiency of theopposition papers need not be addressed (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
The plaintiff's cause of action pursuant to Labor Law § 241 (6) is premised onviolations of 12 NYCRR 23-1.7 (d), which concerns slipping hazards in a passageway, section23-1.7 (e) (1) and (2), which include regulations regarding "tripping and other hazards," andsection 23-1.7 (f), governing vertical passageways. Tex failed to establish its prima facieentitlement to judgment as a matter of law by demonstrating the inapplicability of 12 NYCRR23-1.7 (e) (1) and (2) and (f) (see Boppv A.M. Rizzo Elec. Contrs., Inc., 19 AD3d 348, 350 [2005]; cf. Castillo v Starrett City, 4 AD3d320, 322 [2004]).
However, Tex established prima facie that 12 NYCRR 23-1.7 (d) was inapplicable becausethe accumulation of debris on the stairwell did not constitute a "slippery condition" within themeaning of this code section (seeSalinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2003]; D'Acunti v NewYork City School Constr. Auth., 300 AD2d 107 [2002]). In opposition, the plaintiff failed toraise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch ofTex's motion which was for summary judgment dismissing the Labor Law § 241 (6) causeof action insofar as asserted against it to the extent that it is based on 12 NYCRR 23-1.7 (d).Dillon, J.P., Angiolillo, Leventhal and Chambers, JJ., concur.