| Sullivan v RGS Energy Group, Inc. |
| 2010 NY Slip Op 08158 [78 AD3d 1503] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| Shawn Sullivan, Appellant, v RGS Energy Group, Inc., et al.,Respondents. |
—[*1] The Wolford Law Firm, LLP, Rochester (James S. Wolford of counsel), fordefendants-respondents.
Appeal from a judgment and order (one paper) of the Supreme Court, Monroe County (John J.Ark, J.), entered May 29, 2009 in a personal injury action. The judgment and order granted the motionof defendants for summary judgment dismissing the complaint.
It is hereby ordered that the judgment and order so appealed from is unanimously reversed on thelaw without costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seekingdamages for injuries he sustained when he slipped and fell on ice at the work site. We conclude thatSupreme Court erred in granting defendants' motion for summary judgment dismissing the complaint.Plaintiff's claims pursuant to Labor Law § 241 (6) against each defendant, as amplified by thesupplemental bill of particulars, are premised solely on defendants' alleged violation of 12 NYCRR23-1.7 (d). That Industrial Code regulation is sufficiently specific to support a Labor Law § 241(6) claim (see Tronolone v New York StateDept. of Transp., 71 AD3d 1488 [2010]), and there is an issue of fact whether the areawhere plaintiff fell was a passageway or walkway within the meaning of that regulation (see generally Smith v McClier Corp., 22AD3d 369 [2005]; Bopp v A.M. RizzoElec. Contrs., Inc., 19 AD3d 348, 350 [2005]; Kerins v Vassar Coll., 293 AD2d514, 515 [2002]).
We further conclude that the court erred in granting those parts of defendants' motion with respectto the Labor Law § 200 claims and common-law negligence causes of action. With respect toLabor Law § 200 and common-law negligence, "[w]here a plaintiff's claim arises due to a defector dangerous condition at the work site . . . [and] a defendant moves for summaryjudgment dismissing a Labor Law § 200 claim [and a common-law negligence cause of action],it must establish, as a matter of law, that it did not create, nor have actual or constructive notice of, thedangerous condition alleged" (Gadani vDormitory Auth. of State of N.Y., 43 AD3d 1218, 1220-1221 [2007]; see Finger v Cortese, 28 AD3d 1089,1090 [2006]). Inasmuch as this case arises from plaintiff's slip and fall on ice, i.e., "a dangerouspremises condition" (Navarro v City of NewYork, 75 AD3d 590, 591 [2010]), defendants were required to establish "that the ice formedso close in [*2]time to the accident that [they] could not reasonablyhave been expected to notice and remedy the condition" (Piersielak v Amyell Dev. Corp., 57 AD3d 1422, 1423 [2008] [internalquotation marks omitted]; see Gordon v American Museum of Natural History, 67 NY2d 836,837-838 [1986]; Navarro, 75 AD3d at 591-592). Here, defendants' "own submissions raisean issue of fact" with respect thereto (Walterv United Parcel Serv., Inc., 56 AD3d 1187, 1188 [2008]; see Simmons v OswegoCounty Sav. Bank, 306 AD2d 825, 826 [2003]). Finally, defendants contend that summaryjudgment was warranted because the ice on which plaintiff slipped was open and obvious. We rejectthat contention. "The fact that a dangerous condition is open and obvious does not negate the duty tomaintain premises in a reasonably safe condition but, rather, bears only on the injured person'scomparative fault" (Bax v Allstate HealthCare, Inc., 26 AD3d 861, 863 [2006]). Present—Fahey, J.P., Carni, Lindley, Greenand Gorski, JJ.