| Navarro v City of New York |
| 2010 NY Slip Op 06162 [75 AD3d 590] |
| July 20, 2010 |
| Appellate Division, Second Department |
| Dorian Navarro et al., Appellants, v City of New York etal., Respondents. |
—[*1] Jones Hirsch Connors & Bull P.C. (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success,N.Y. [Christopher Simone and Robert M. Ortiz], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated June3, 2009, as granted those branches of the defendants' motion which were for summary judgmentdismissing the causes of action alleging violations of Labor Law § 200 and common-lawnegligence and dismissing the causes of action alleging violations of Labor Law § 240 (1)and § 241 (6) insofar as asserted against the defendants City of New York and New YorkCity School Construction Authority, and denied their cross motion for summary judgment on theissue of liability on the cause of action alleging a violation of Labor Law § 240 (1).
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendants' motion which were for summary judgment dismissing thecauses of action alleging a violation of Labor Law § 200 and common-law negligenceinsofar as asserted against the defendants City of New York and Board of Education of the Cityof New York, and substituting therefor provisions denying those branches of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
The injured plaintiff, Dorian Navarro (hereinafter the plaintiff), was caulking windows onthe exterior of a public school when he dropped his spatula and it fell through a metal grate inthe ground outside the school. The plaintiff testified that although he had never been inside theschool on any prior occasion, a school custodian took him inside the school to the basement toretrieve his tool. According to the plaintiff's deposition testimony, the school custodian told himhe could access the tool by opening a window in the basement that was adjacent to the areaunder the metal grate where the plaintiff dropped his tool. In order to reach the basementwindow, which was higher than the plaintiff's head, the school custodian told the plaintiff toclimb a ladder that was propped up against the basement wall under the window. As the plaintiffclimbed the ladder and attempted to open the basement window, the ladder slipped and theplaintiff fell, allegedly sustaining injuries. After the plaintiff fell, he noticed grease on the groundand on his clothes. It was also alleged that the ladder lacked proper footing.[*2]
The plaintiff and his wife, suing derivatively,commenced this action against the defendants, City of New York, New York City SchoolConstruction Authority (hereinafter the SCA), and the Board of Education of the City of NewYork (hereinafter the Board). The plaintiffs alleged violations of Labor Law §§ 200,240 (1) and § 241 (6) and common-law negligence. The Supreme Court granted thedefendants' motion for summary judgment dismissing the complaint and denied the plaintiffs'cross motion for summary judgment on the issue of liability on the cause of action alleging aviolation of Labor Law § 240 (1).
The Supreme Court erred in determining that the City and the Board were entitled tosummary judgment dismissing the Labor Law § 200 and common-law negligence causesof action insofar as asserted against them. Where, as here, the accident arises not from themethods or manner of the work, but from a dangerous premises condition, "a property owner isliable under Labor Law § 200 when the owner created the dangerous condition causing aninjury or when the owner failed to remedy a dangerous or defective condition of which he or shehad actual or constructive notice" (Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]; see Schultz v Hi-Tech Constr. & Mgt.Servs., Inc., 69 AD3d 701 [2010]; Artoglou v Gene Scappy Realty Corp., 57 AD3d 460 [2008]).Moreover, "when a defendant property owner lends allegedly dangerous or defective equipmentto a worker that causes injury during its use, the defendant moving for summary judgment mustestablish that it neither created the alleged danger or defect in the instrumentality nor had actualor constructive notice of the dangerous or defective condition" (Chowdhury v Rodriguez,57 AD3d at 131-132). Here, the foreman for the general contractor at the site testified at hisdeposition that the ladder in the basement was "school property," and the plaintiffs alleged thatthe ladder lacked proper footing. The City and the Board failed to establish, prima facie, thatthey did not create or have notice of the alleged defect in the ladder, nor did they submit anyevidence to show that they did not create or have notice of the slippery grease condition in thebasement.
Contrary to the contentions of the City and the Board, they also failed to establish, primafacie, that they were free from fault in the happening of the accident and that the plaintiff'sconduct in going to retrieve his tool in an area where he was not assigned to work was the soleproximate cause of the accident. The plaintiff testified at his deposition that the school custodianled him into the basement, advised him to use the ladder under the window, and specificallyrefused to hold the ladder for the plaintiff when the plaintiff asked him to. The City and theBoard relied on the plaintiff's deposition testimony in support of the motion for summaryjudgment. Under these circumstances, the submissions of the City, as the owner of the school,and the Board, as the alleged employer of the school custodian, failed to show the absence oftriable issues of fact with respect to their liability under Labor Law § 200 and forcommon-law negligence (see Schultz vHi-Tech Constr. & Mgt. Servs., Inc., 69 AD3d 701 [2010]; Chowdhury v Rodriguez, 57 AD3d121 [2008]; Artoglou v GeneScappy Realty Corp., 57 AD3d 460 [2008]; see generally Basso v Miller, 40NY2d 233 [1976]; Riviello v Waldron, 47 NY2d 297 [1979]).
The SCA, however, was entitled to summary judgment dismissing the causes of actionalleging a violation of Labor Law § 200 and common-law negligence insofar as assertedagainst it, since it demonstrated that it did not own the subject premises and it lacked sufficientcontrol over the premises and the activity that brought about the injury (see Dos Santos v STV Engrs., Inc., 8AD3d 223, 224-225 [2004]). In addition, the Supreme Court properly awarded summaryjudgment dismissing the causes of action alleging violations of Labor Law § 240 (1) and§ 241 (6) insofar as asserted against the City and the SCA. The defendants established,prima facie, that the plaintiff's accident inside the basement, which was not under construction orroutinely accessed by workers on the day of the accident, was too far removed from anyconstruction-related activity and too attenuated from the hazards associated with an enumeratedactivity to fall within the ambit of protection provided by those statutes (see Ferenczi v Port Auth. of N.Y. &N.J., 34 AD3d 722 [2006]; Plotnick v Wok's Kitchen Inc., 21 AD3d 358 [2005]; Bruder v979 Corp., 307 AD2d 980 [2003]; see generally Prats v Port Auth. of N.Y. & N.J.,100 NY2d 878 [2003]; Nagel v D & R Realty Corp., 99 NY2d 98 [2002]; Nieves vFive Boro A.C. & Refrig. Corp., 93 NY2d 914 [1999]). In opposition, the plaintiffs failed toraise a triable issue of fact with respect to these causes of action.
The plaintiffs' remaining contentions either are without merit or have been rendered [*3]academic. Balkin, J.P., Eng, Austin and Roman, JJ., concur.