| Colon v Bet Torah, Inc. |
| 2009 NY Slip Op 07372 [66 AD3d 731] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Manuel Colon, Respondent, v Bet Torah, Inc., Appellant,et al., Defendant. |
—[*1] Worby Groner Edelman LLP, White Plains, N.Y. (Neil W. Silberblatt and Michael Taub ofcounsel), for respondent. Barry, McTiernan & Moore, New York, N.Y. (Laurel A. Wedinger of counsel), fordefendant.
In an action to recover damages for personal injuries, the defendant Bet Torah, Inc., appeals,as limited by its brief, from so much of an order of the Supreme Court, Westchester County(Nicolai, J.), entered July 17, 2008, as denied those branches of its motion which were forsummary judgment dismissing the plaintiff's common-law negligence and Labor Law §200 causes of action insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was the employee of a subcontractor performing construction work on thepremises of the defendant Bet Torah, Inc. (hereinafter the defendant). On June 21, 2005 theplaintiff allegedly was injured while carrying materials from one part of the site to another, whenthe cover of a grease pit he had stepped on became dislodged, causing him to fall into the pit andsustain injuries. He commenced this action, alleging in part that the defendant was negligent inpermitting a dangerous condition to exist on the premises. The defendant appeals from so muchof the Supreme Court's order as denied those branches of its motion which were for summaryjudgment dismissing the plaintiff's common-law negligence and Labor Law § 200 causesof action insofar as asserted against it.
Labor Law § 200 is a codification of the common-law duty of an owner or contractorto provide employees with a safe place to work (see Rizzuto v L.A. Wenger Contr. Co.,91 NY2d 343, 352 [1998]; Aguilera vPistilli Constr. & Dev. Corp., 63 AD3d 763 [2009]; Chowdhury v Rodriguez, 57 AD3d 121, 127-128 [2008]). Whenan accident arises from a dangerous condition on the premises, an owner may be held liable if itcreated the condition or failed to remedy it despite having actual or constructive knowledge of it(see Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d at 763; Fuchs v Austin Mall Assoc., LLC, 62AD3d 746, 747 [2009]; Chowdhury v Rodriguez, 57 AD3d at 128). Moreover, if areasonable inspection would have disclosed the dangerous condition, the failure to make such an[*2]inspection constitutes negligence and may make the ownerliable for injuries proximately caused by the condition (see Lee v Bethel First PentecostalChurch of Am., 304 AD2d 798, 800 [2003]).
Here, there was no dispute that the defendant maintained control over that part of thepremises where the injury allegedly occurred. By failing to submit any evidence regarding whenit had last inspected the grease pit cover, or that the defect would not have been discovered upona reasonable inspection, the defendant failed to establish that it lacked constructive notice of thealleged dangerous condition or that it was free of negligence with respect to it (cf. Applegate v Long Is. Power Auth.,53 AD3d 515, 516 [2008]; Curialev Sharrotts Woods, Inc., 9 AD3d 473, 475 [2004]). Consequently, it failed to establishits prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200and common-law negligence causes of action and those branches of the defendant's motion wereproperly denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Smith v New York City Hous.Auth., 52 AD3d 808, 808-809 [2008]; cf. Baez v Jovin III, LLC, 41 AD3d 751, 752 [2007]). Fisher, J.P.,Covello, Angiolillo and Roman, JJ., concur.