| Vella v One Bryant Park, LLC |
| 2011 NY Slip Op 08931 [90 AD3d 645] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Daniel Vella, Respondent, v One Bryant Park, LLC, et al.,Appellants. |
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Adams Law Firm, P.C. (Joshua Annenberg, New York, N.Y., of counsel), forrespondent.
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, Rockland County (Walsh II, J.),dated January 31, 2011, as denied those branches of their motion which were for summaryjudgment dismissing so much of the complaint as alleged a violation of Labor Law § 240(1) and so much of the complaint as alleged common-law negligence and a violation of LaborLaw § 200 insofar as asserted against the defendant One Bryant Park, LLC.
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 so much of thecomplaint as alleged a violation of Labor Law § 240 (1), and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar asappealed from, with costs to the plaintiff.
The plaintiff allegedly was injured while working as a site-safety observer in connection withthe construction of a skyscraper owned by the defendant One Bryant Park, LLC (hereinafterOBP). He allegedly fell while descending the last step of a stairway which was twice the heightof the other steps, and could not steady himself with the handrail since it did not extend to thatlast step.
The Supreme Court properly denied that branch of the defendants' motion which was forsummary judgment dismissing so much of the complaint as alleged common-law negligence anda violation of Labor Law § 200 insofar as asserted against OBP. Labor Law § 200codifies the common-law duty to maintain a safe work site (see Rizzuto v L.A. WengerContr. Co., 91 NY2d 343, 352 [1998]). Where, as here, a plaintiff contends that an accidentoccurred because a dangerous condition existed on the premises, an owner moving for summaryjudgment dismissing causes of action alleging common-law negligence and a violation of LaborLaw § 200 has the initial burden of making a prima facie showing that it neither createdthe dangerous condition nor had actual or constructive notice of its existence (see Slikas v Cyclone Realty, LLC, 78AD3d 144, 149 [2010]; Chowdhuryv Rodriguez, 57 AD3d 121, 128 [2008]). To provide constructive notice, the defect mustbe [*2]visible and apparent and exist for a sufficient length oftime prior to the accident to permit the defendant to discover and remedy it (see Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837 [1986]).
Here, the defendants failed to submit evidence sufficient to make a prima facie showing thatOBP did not have actual or constructive notice of the allegedly dangerous condition. The plaintifftestified at his deposition that he reported the condition of the stairway at a site-safety meetingprior to his accident, and that his complaint was reflected in the notes from that meeting. OBP'sconstruction representative testified, at his deposition, that he was given reports from thesite-safety meetings. While the defendants contend that there is no evidence that these reportswere the same as the meeting notes, on a motion for summary judgment, the evidence must beviewed in the light most favorable to the nonmoving party (see Schaffe v SimmsParris, 82 AD3d 867 [2011]; Robinson v 206-16 Hollis Ave. FoodCorp., 82 AD3d 735 [2011]). In any event, the defendants failed to submit evidencesufficient to make a prima facie showing that the alleged dangerous condition did not exist for asufficient length of time prior to the accident to permit OBP to discover and remedy it (seeGordon v American Museum of Natural History, 67 NY2d at 837). Since the defendantsfailed to meet their prima facie burden, the burden did not shift to the plaintiff to raise a triableissue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Accordingly, this branch of the motion was properly denied, regardless of the sufficiency of theplaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).
The plaintiff correctly concedes that the Supreme Court should have granted that branch ofthe defendants' motion which was for summary judgment dismissing so much of the complaint asalleged a violation of Labor Law § 240 (1) (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603[2009]). Skelos, J.P., Hall, Lott and Cohen, JJ., concur.