| Rodriguez v BCRE 230 Riverdale, LLC |
| 2012 NY Slip Op 00768 [91 AD3d 933] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Rafael Rodriguez, Respondent, v BCRE 230 Riverdale,LLC, et al., Appellants, et al., Defendant. |
—[*1] Gorayeb & Associates, P.C., New York, N.Y. (John M. Shaw of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants BCRE 230 Riverdale,LLC, and R.A. Cohen & Associates, Inc., appeal, as limited by their brief, from so much of anorder of the Supreme Court, Kings County (Martin, J.), dated December 21, 2010, as deniedthose branches of their cross motion which were for summary judgment dismissing the causes ofaction alleging common-law negligence and a violation of Labor Law § 200 and so muchof the cause of action alleging a violation of Labor Law § 241 (6) as was based upon 12NYCRR 23-1.7 (e) (1) and (2) insofar as asserted against the defendant BCRE 230 Riverdale,LLC.
Ordered that the appeal by the defendant R.A. Cohen & Associates, Inc., is dismissed asabandoned (see 22 NYCRR 670.8 [c], [e]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the cross motion of the defendants BCRE 230 Riverdale, LLC, and R.A. Cohen &Associates, Inc., which was for summary judgment dismissing so much of the cause of actionalleging a violation of Labor Law § 241 (6) as was based upon 12 NYCRR 23-1.7 (e) (2)insofar as asserted against the defendant BCRE 230 Riverdale, LLC, and substituting therefor aprovision granting that branch of the cross motion; as so modified, the order is affirmed insofaras appealed from by the defendant BCRE 230 Riverdale, LLC; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff allegedly was injured while performing demolition work as part of a renovationproject at a building owned by the defendant BCRE 230 Riverdale, LLC (hereinafter BCRE).According to the plaintiff, he and two coworkers were pushing a dumpster filled with demolitiondebris through an alley behind the building when one of its wheels became stuck and stoppedmoving. As the plaintiff was pulling and his coworkers were pushing the dumpster, it movedsideways and one of its wheels fell into what the plaintiff described as a hole. While trying tosteady the dumpster, the plaintiff tripped on the hole and both he and the dumpster fell, allegedlycausing injuries to the plaintiff. It is undisputed that the hole described by the plaintiff was anarea [*2]where the concrete surface of the alley had been cut inorder to install a ramp to the basement of the building as part of the renovation project. Theplaintiff testified at a deposition that no one was working on the ramp area on the day of hisaccident.
The plaintiff commenced this action against several parties, including BCRE, alleging, interalia, common-law negligence and violations of Labor Law §§ 200 and 241 (6). As isrelevant to this appeal, the defendants BCRE and R.A. Cohen & Associates, Inc. (hereinafterR.A. Cohen), the managing agent for the tenants living in the building, cross-moved for summaryjudgment, inter alia, dismissing the causes of action alleging common-law negligence andviolations of Labor Law §§ 200 and 241 (6) insofar as asserted against each of them.The Supreme Court granted the cross motion as to R.A. Cohen, but denied it as to BCRE.
Labor Law § 200 is a codification of the common-law duty of property owners andgeneral contractors to provide workers with a safe place to work (see Rizzuto v L.A. WengerContr. Co., 91 NY2d 343, 352 [1998]). "Cases involving Labor Law § 200 fall intotwo broad categories: namely, those where workers are injured as a result of dangerous ordefective premises conditions at a work site, and those involving the manner in which the work isperformed" (Ortega v Puccia, 57AD3d 54, 61 [2008]; seeChowdhury v Rodriguez, 57 AD3d 121, 128 [2008]).
Contrary to BCRE's contention, the injury in this case arose from an allegedly defectivecondition on the premises rather than from the manner in which the work was being performed(see White v Village of PortChester, 84 AD3d 946, 946 [2011]; Nankervis v Long Is. Univ., 78 AD3d 799, 800 [2010]; Slikas v Cyclone Realty, LLC, 78AD3d 144, 148 [2010]; cf. Cody vState of New York, 82 AD3d 925, 926 [2011]; Gomez v City of New York, 56 AD3d 522, 523 [2008]).Accordingly, BCRE had 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 Chowdhuryv Rodriguez, 57 AD3d at 131-132; Ortega v Puccia, 57 AD3d at 61; Azad v 270 5th Realty Corp., 46 AD3d728, 730 [2007]). Since BCRE failed to make a prima facie showing that it lacked notice ofthe allegedly dangerous condition, the Supreme Court properly denied that branch of the crossmotion which was to dismiss the causes of action alleging common-law negligence and aviolation of Labor Law § 200 insofar as asserted against BCRE.
The Supreme Court also properly denied that branch of the cross motion which was forsummary judgment dismissing the cause alleging a violation of Labor Law § 241 (6) to theextent that it is based on a violation of 12 NYCRR 23-1.7 (e) (1) insofar as asserted againstBCRE. BCRE failed to demonstrate the absence of a triable issue of fact as to whether theplaintiff tripped in a passageway (seeAragona v State of New York, 74 AD3d 1260, 1261 [2010]; Bopp v A.M. Rizzo Elec. Contrs., Inc.,19 AD3d 348, 350 [2005]; Kerins v Vassar Coll., 293 AD2d 514, 515 [2002]), andwhether the alleged defect was an integral part of the construction (see Torres v Forest City Ratner Cos.,LLC, 89 AD3d 928 [2011]; Aragona v State of New York, 74 AD3d at 1261; Giza v New York City School Constr.Auth., 22 AD3d 800, 801 [2005]).
However, the Supreme Court erred in denying that branch of the cross motion which was forsummary judgment dismissing so much of the Labor Law § 241 (6) claim as was basedupon 12 NYCRR 23-1.7 (e) (2) insofar as asserted against BCRE. BCRE satisfied its prima facieburden of establishing its entitlement to judgment as a matter of law by demonstrating that 12NYCRR 23-1.7 (e) (2) was inapplicable, as the subject defect was not a hazard contemplated bythat regulation (see Spence v IslandEstates at Mt. Sinai II, LLC, 79 AD3d 936, 938 [2010]; Fura v Adam's Rib Ranch Corp., 15AD3d 948, 949 [2005]; Madir v21-23 Maiden Lane Realty, LLC, 9 AD3d 450, 452 [2004]). In opposition, the plaintifffailed to raise a triable issue of fact. Rivera, J.P., Eng, Lott and Sgroi, JJ., concur.