| Sanders v St. Vincent Hosp. |
| 2012 NY Slip Op 03993 [95 AD3d 1195] |
| May 23, 2012 |
| Appellate Division, Second Department |
| John Sanders, Respondent, v St. Vincent Hospital,Appellant, et al., Defendants. (And a Third-Party Action.) |
—[*1] Joseph T. Mullen, New York, N.Y. (Allan L. Brenner of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant St. Vincent Hospitalappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Ruchelsman, J.), dated March 22, 2011, as denied those branches of its motion which were forsummary judgment dismissing the causes of action alleging violations of Labor Law§§ 200 and 241 (6) insofar as asserted against it, and granted that branch of theplaintiff's cross motion which was for leave to serve an amended bill of particulars.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendant St. Vincent Hospital which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 200 insofar as assertedagainst it, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
"Labor Law § 200 codifies the common-law duty of an owner or employer to provideemployees with a safe place to work" (Romang v Welsbach Elec. Corp., 47 AD3d 789, 789 [2008]; see Nasuro v PI Assoc., LLC, 49 AD3d829, 831 [2008]). "Where a premises condition is at issue, property owners may be heldliable for a violation of Labor Law § 200 if the owner either created the dangerouscondition that caused the accident or had actual or constructive notice of the dangerous conditionthat caused the accident" (Ortega vPuccia, 57 AD3d 54, 61 [2008]).
Here, St. Vincent's Hospital Westchester, sued herein as St. Vincent Hospital (hereinafter thehospital), the owner of the subject premises, established its prima facie entitlement to judgmentas a matter of law dismissing the Labor Law § 200 cause of action by demonstrating that itdid not create the allegedly dangerous condition, and it did not have either actual or constructivenotice of the allegedly dangerous condition (see Payne v 100 Motor Parkway Assoc., LLC, 45 AD3d 550, 553[2007]). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, theSupreme Court should have granted that branch of the hospital's motion which was for summaryjudgment dismissing the cause of action alleging a violation of Labor Law § 200 insofar asasserted against it.
However, the Supreme Court properly denied that branch of the hospital's motion which wasfor summary judgment dismissing the cause of action alleging a violation of Labor Law §241 (6) insofar as asserted against it, and properly granted that branch of the plaintiff's crossmotion which was for leave to serve an amended bill of particulars. To establish its Labor Law§ 241 (6) cause of action, the plaintiff alleged a violation of 12 NYCRR 23-1.7 (e) (2) forthe first time in opposition to the hospital's motion for summary judgment. Contrary to thehospital's contention, the Supreme Court correctly granted the plaintiff leave to amend his bill ofparticulars to add an allegation that 12 NYCRR 23-1.7 (e) (2) was violated. The amendmentpresented no new factual allegations or new theories of liability, and did not prejudice thehospital (see Rico-Castro v Do & CoN.Y. Catering, Inc., 60 AD3d 749, 751 [2009]; Galarraga v City of New York, 54 AD3d 308, 310 [2008]; Dowd v City of New York, 40 AD3d908, 911-912 [2007]). The fact that the plaintiff raised his allegation of the specificIndustrial Code provision for the first time in opposition to the hospital's motion for summaryjudgment was not fatal to his claim, and was sufficient to raise a triable issue of fact regardingthe Hospital's liability pursuant to Labor Law § 241 (6) (see Latino v Nolan &Taylor-Howe Funeral Home, 300 AD2d 631, 633-634 [2002]).
12 NYCCR 23-1.7 (e) (2) is inapplicable where the object "over which the [plaintiff] allegeshe [or she] tripped was integral to the work being performed" (Cody v State of New York, 82 AD3d925, 928 [2011]; see Venezia vState of New York, 57 AD3d 522, 523 [2008]; Marinaccio v Arlington Cent. School Dist., 40 AD3d 714, 715[2007]; Dubin v S. DiFazio & SonsConstr., Inc., 34 AD3d 626, 627 [2006]). Here, however, the hospital's own submissionspresented triable issues of fact as to whether the object, if any, over which the plaintiff trippedand fell was integral to the work being performed (cf. Marinaccio v Arlington Cent. SchoolDist., 40 AD3d at 715; Dubin v S. DiFazio & Sons Constr., Inc., 34 AD3d at 627).Angiolillo, J.P., Dickerson, Hall and Cohen, JJ., concur.