| Rajkumar v Budd Contr. Corp. |
| 2010 NY Slip Op 07689 [77 AD3d 595] |
| October 28, 2010 |
| Appellate Division, First Department |
| Dhanraj Rajkumar, Respondent, v Budd ContractingCorporation, Defendant, and Sheraton Hotel et al., Appellants. |
—[*1] Kravet Hoefer & Maher, P.C., Bronx (John A. Maher of counsel), for respondent.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered June 19, 2009, which, tothe extent appealed from as limited by the briefs, denied the hotel defendants' motion for summaryjudgment insofar as it sought dismissal of plaintiff's Labor Law §§ 200 and 241 (6) andcommon law negligence claims, unanimously reversed, on the law, without costs, the motion grantedand the complaint dismissed as against the hotel defendants. The Clerk is directed to enter judgmentaccordingly.
Dismissal of the Labor Law § 241 (6) claim was warranted as the evidence demonstratedthat plaintiff's interior decorating work, which involved, inter alia, the manufacture and hanging of a300-pound mirror in the hotel defendants' main lobby, was not done in the context of construction,demolition or excavation work (see Nagel v D & R Realty Corp., 99 NY2d 98 [2002];Esposito v New York City Indus. Dev. Agency, 305 AD2d 108 [2003], affd 1 NY3d526 [2003]). To the extent the hotel defendants raise the issue of the applicability of Labor Law§ 241 (6) for the first time on appeal, we exercise our discretion to reach the unpreserved issueas it could have been decided, as a matter of law, below (see e.g. Chateau D' If Corp. v City ofNew York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]).
Even assuming, arguendo, plaintiff's work was performed in the context of construction, demolitionor excavation, we further find that Industrial Code (12 NYCRR) § 23-1.7 (e), upon whichplaintiff relies in support of his Labor Law § 241 (6) claim, lacks evidentiary support in therecord for its application. Plaintiff described the main lobby in which his accident occurred as a bigopen space, and we conclude that such an area would not fit within the term of "[p]assageway," as setforth in subdivision (e) (1) (see e.g. Smith vHines GS Props., Inc., 29 AD3d 433 [2006]). Further, subdivision (e) (2) of Industrial Code(12 NYCRR) § 23-1.7 pertains to such tripping hazards as dirt, debris and scattered tools andmaterials in a work area. Here, the plaintiff did not trip over loose or scattered material, but rather, overbrown construction paper that was purposefully laid over newly installed floors to protect them. Suchpaper covering constituted an integral part of the floor work on the renovation project, and could notbe construed to be a misplaced material over [*2]which one might trip(see e.g. Vieira v Tishman Constr. Corp., 255 AD2d 235 [1998]).
Plaintiff's Labor Law § 200 and common law negligence claims should have been dismissedas there was no evidence that the hotel defendants had actual or constructive notice of a defect in thepaper floor covering (see Cahill v TriboroughBridge & Tunnel Auth., 31 AD3d 347, 350-351 [2006]; Canning v Barneys N.Y.,289 AD2d 32, 33 [2001]). Concur—Saxe, J.P., Acosta, Freedman, Richter andAbdus-Salaam, JJ.