| Nankervis v Long Is. Univ. |
| 2010 NY Slip Op 08079 [78 AD3d 799] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Gary M. Nankervis, Respondent, v Long Island Universityet al., Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), datedMay 1, 2009, as denied those branches of their motion which were for summary judgmentdismissing the Labor Law § 241 (6) cause of action to the extent that it is based onviolations of 12 NYCRR 23-1.7 (d) and (e) (2), and for summary judgment dismissing the LaborLaw § 200 and common-law negligence causes of action insofar as asserted against thedefendant Sullivan & Nickel Construction, Co., Inc.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' motion which was for summary judgment dismissing the Labor Law§ 241 (6) cause of action insofar as asserted against them to the extent it is based on aviolation of 12 NYCRR 23-1.7 (d) and substituting therefor a provision granting that branch ofthe motion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The defendant Long Island University (hereinafter LIU) retained the defendant Sullivan &Nickel Construction, Co., Inc. (hereinafter Sullivan), to act as the general contractor for aconstruction project on its property. Sullivan subcontracted with nonparty McDowell Electric(hereinafter McDowell) to perform electrical work on the project. The plaintiff was employed byMcDowell as an electrician.
The plaintiff allegedly slipped on a pipe covered by debris while carrying cable. The plaintiffcommenced this action against LIU and Sullivan, alleging violations of Labor Law§§ 200, 240 and § 241 (6) and a common-law negligence cause of action. Thedefendants moved for summary judgment dismissing the complaint. The Supreme Court deniedthose branches of the motion which were for summary judgment dismissing the causes of actionalleging common-law [*2]negligence and a violation of LaborLaw § 200 against Sullivan and a violation of Labor Law § 241 (6) to the extent itwas based on violations of 12 NYCRR 23-1.7 (d) and (e) (2). The defendants appeal.
The Supreme Court properly denied those branches of the defendants' motion which were forsummary judgment dismissing the causes of action based on common-law negligence and LaborLaw § 200 insofar as asserted against Sullivan. Labor Law § 200 codifies thecommon-law duty of an owner or general contractor to provide employees with a safe place towork (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Peay v New York City School Constr.Auth., 35 AD3d 566, 567 [2006]; Paladino v Society of N.Y. Hosp., 307 AD2d343, 344 [2003]). Here, an allegedly defective premises condition consisting of constructiondebris lying on the cafeteria floor allegedly caused the plaintiff's fall. In order for Sullivan toprevail on the motion for summary judgment, it had to show that it neither created the dangerouscondition nor had actual or constructive notice of it within a reasonable time to correct it (seeSlikas v Cyclone Realty, LLC, 78 AD3d 144 [2d Dept2010]; Ortega v Puccia, 57 AD3d54, 61-62 [2008]; Keating v NanuetBd. of Educ., 40 AD3d 706, 708 [2007]). Sullivan failed to establish, prima facie, that itlacked actual or constructive notice of the alleged defect (see Mikhaylo v Chechelnitskiy, 45 AD3d 821 [2007]; Keating vNanuet Bd. of Educ., 40 AD3d at 709). Since it failed to meet its prima facie burden withregard to those branches of the motion seeking to dismiss the common-law negligence and LaborLaw § 200 causes of action insofar as asserted against it, the sufficiency of the oppositionpapers need not be addressed (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).
The cause of action pursuant to Labor Law § 241 (6) was based, inter alia, onviolations of 12 NYCRR 23-1.7 (d) and (e) (2). The defendants failed to demonstrate their primafacie entitlement to summary judgment based on the inapplicability of 12 NYCRR 23-1.7 (e) (2)(see Bopp v A.M. Rizzo Elec. Contrs.,Inc., 19 AD3d 348, 350 [2005]).
However, the defendants established, prima facie, that 12 NYCRR 23-1.7 (d) wasinapplicable because the accumulation of debris did not constitute a "slippery condition" withinthe meaning of this code section (seeAguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763 [2009]; Salinas v Barney Skanska Constr. Co.,2 AD3d 619, 622 [2003]; D'Acunti v New York City School Constr. Auth., 300AD2d 107 [2002]; cf. Hageman v HomeDepot U.S.A., Inc., 45 AD3d 730 [2007]). In opposition, the plaintiff failed to raise atriable issue of fact. Accordingly, the Supreme Court should have granted that branch of thedefendants' motion which was for summary judgment dismissing the Labor Law § 241 (6)cause of action to the extent that it is based on a violation of 12 NYCRR 23-1.7 (d). Dillon, J.P.,Angiolillo, Hall and Roman, JJ., concur.