| Harkin v City of New York |
| 2010 NY Slip Op 00647 [69 AD3d 901] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Michael Harkin et al., Respondents, v City of New York,Appellant. |
—[*1] DeBrosse & Studley, LLP, Jamaica Heights, N.Y. (Kathleen M. Geiger of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Schmidt, J.), dated January 6, 2009, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Michael Harkin (hereinafter the plaintiff) was employed as a constructionworker with a company known as AJ Pegno. In July 2001 the plaintiff was assigned to a projectat the Newtown Creek sewage treatment center, which is owned by the defendant, City of NewYork. The work site had a shanty for employees to change their clothes. The shanty wasapproximately 100 feet from the parking lot, and could be reached by a pathway about 15 feetwide. This pathway was the only way to enter the construction site. The plaintiff testified at hisexamination before trial that the pathway by the door to the shanty was covered with emptycement bags, wooden pallets, empty bottles, and other debris. He complained about the areabeing cluttered with garbage to his supervisor and to the safety inspector. Ernest Livingston, asite project manager for the New York City Department of Environmental Protection, testified athis examination before trial that he received complaints about garbage, a lack of cleanliness, anda rat infestation at the site.
The plaintiff alleges that on July 24, 2001, his foot caught on a wooden pallet near thedoorway as he was entering the shanty, and he fell, sustaining injuries. The plaintiff testified thatthe pallet had been in the same place for at least two days. The plaintiff also was trying to avoidstepping on a piece of paper and a bottle as he entered the shanty. The plaintiffs thereaftercommenced this action to recover damages, inter alia, for personal injuries, common-lawnegligence, and violation of Labor Law §§ 200 and 241 (6). The defendant's motionfor summary judgment dismissing the complaint was denied, and we affirm.
The Supreme Court properly denied that branch of the defendant's motion which was forsummary judgment dismissing the causes of action alleging common-law negligence andviolation of Labor Law § 200. The defendant failed to establish, prima facie, that it hadneither [*2]actual nor constructive notice of the dangerouscondition (see Padovano v Teddy'sRealty Assoc., Ltd., 56 AD3d 444, 447 [2008]; Lane v Fratello Constr. Co., 52 AD3d 575, 576 [2008]; Lopesv Interstate Concrete, 293 AD2d 579, 580 [2002]; cf. Gavigan v Bunkoff Gen.Contrs., 247 AD2d 750, 751 [1998]; see generally Zuckerman v City of New York,49 NY2d 557, 562 [1980]).
The Supreme Court also properly denied that branch of the defendant's motion which was forsummary judgment dismissing the cause of action alleging violation of Labor Law § 241(6). There is an issue of fact as to whether the plaintiff was injured in a "working area" asdefined by 12 NYCRR 23-1.7 (e) (2) (see Lane v Fratello Constr. Co., 52 AD3d 575, 575-576 [2008]; McDonagh v Victoria's Secret, Inc., 9AD3d 395, 396 [2004]; Dalanna v City of New York, 308 AD2d 400 [2003]; cf.Gavigan v Bunkoff Gen. Contrs., 247 AD2d 750, 751 [1998]; see generally Rizzuto vL.A. Wenger Contr. Co., 91 NY2d 343 [1998]). Rivera, J.P., Dillon, Belen and Roman, JJ.,concur.