| Quinn v Whitehall Props., II, LLC |
| 2010 NY Slip Op 00126 [69 AD3d 599] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Thomas Quinn, Appellant, v Whitehall Properties, II,LLC, et al., Respondents, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Herzfeld & Rubin PC, New York, N.Y. (Linda M. Brown, Howard S. Edinburgh, and NeilR. Finkston of counsel), for respondents.
In a consolidated action to recover damages for personal injuries, the plaintiff appeals, aslimited by his brief, from (1) so much of an order of the Supreme Court, Nassau County(Brandveen, J.), dated March 28, 2008, as granted that branch of the motion of the defendantsWhitehall Properties II, LLC, and Pan-Am Equities, Inc., which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 241 (6) insofar asasserted against them, and (2) so much of a judgment of the same court entered April 28, 2008,as, upon the order, is in favor of the defendants Whitehall Properties II, LLC, and Pan-AmEquities, Inc., and against him, dismissing the cause of action alleging a violation of Labor Law§ 241 (6) insofar as asserted against those defendants.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, that branch ofthe motion of the defendants Whitehall Properties, II, LLC, and Pan-Am Equities, Inc., whichwas for summary judgment dismissing the cause of action alleging a violation of Labor Law§ 241 (6) insofar as asserted against them is denied, that cause of action is reinstatedinsofar as asserted against those defendants, and the order is modified accordingly; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The defendant Whitehall Properties, II, LLC (hereinafter Whitehall), is the owner of abuilding located in Manhattan, and the defendant Pan-Am Equities, Inc. (hereinafter Pan-Am), isthe managing agent thereof. Whitehall and Pan-Am (hereinafter together the defendants) enteredinto a lease with a restaurant franchisee for commercial space within the building, in which arestaurant was to be constructed. The defendant Shiny Construction, Inc. (hereinafter ShinyConstruction), was the general contractor for the project.[*2]
At the time of the subject accident, the plaintiff wasworking as a steam fitter for a subcontractor hired by Shiny Construction, and was in the processof installing the main line for a sprinkler system at the subject premises. The plaintiff allegedthat the floor of the area where he was working was covered in debris and scattered materials,and that he had to clear an area in order to place his ladder. As he alighted from the ladder, theplaintiff alleges that he stepped onto debris, which caused him to fall and sustain injury.
The defendants failed to establish their prima facie entitlement to judgment as a matter oflaw dismissing the cause of action alleging a violation of Labor Law § 241 (6), which waspredicated upon an alleged violation of 12 NYCRR 23-1.7 (e) (2). This section of the IndustrialCode requires owners and contractors to maintain working areas free from tripping hazards suchas, inter alia, debris and scattered materials "insofar as may be consistent with the work beingperformed" (12 NYCRR 23-1.7 [e] [2]). The evidence submitted by the defendants in support oftheir motion for summary judgment failed to demonstrate the absence of triable issues of fact asto whether the materials that the plaintiff alleges he stepped on and caused him to fall wereintegral to the work being performed, or constituted mere "debris" (Riley v J.A. Jones Contr., Inc., 54AD3d 744, 745 [2008]; cf. Galazkav WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 790 [2008]). Moreover, anycomparative negligence on the part of the plaintiff does not preclude liability founded upon aviolation of Labor Law § 241 (6) (see Owen v Schulmann Constr. Corp., 26 AD3d 362, 363 [2006];Bradley v Morgan Stanley & Co., Inc.,21 AD3d 866, 868 [2005]), and the defendants failed to establish that the plaintiff'sactions were the sole proximate cause of the accident. Accordingly, the Supreme Court shouldnot have awarded the defendants summary judgment dismissing the cause of action alleging aviolation of Labor Law § 241 (6) insofar as asserted against them (see generallyWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
The defendants' remaining contention is without merit. Fisher, J.P., Covello, Santucci andBalkin, JJ., concur.