| Raffa v City of New York |
| 2012 NY Slip Op 08071 [100 AD3d 558] |
| November 27, 2012 |
| Appellate Division, First Department |
| Charles Raffa Jr., Appellant, v City of New York,Respondent, et al., Defendants. |
—[*1] Greenblatt Lesser, LLP, New York (Gershon D. Greenblatt of counsel), forrespondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered September 16, 2011,which granted defendant City of New York's motion for summary judgment dismissing thecomplaint as against it, unanimously modified, on the law, the motion denied as to plaintiff'sclaims of negligence and violation of Labor Law § 200, and otherwise affirmed, withoutcosts.
Supreme Court should have denied that portion of the motion which sought dismissal ofplaintiff's negligence and Labor Law § 200 claims against the City. Because the Labor Law§ 200 and common-law negligence claims are based on a dangerous condition on the site,not on the methods or materials used in the work, the only issue is whether defendant City hadnotice of the condition, not whether it exercised supervisory control over the manner ofperformance of plaintiff's work (Minorczyk v Dormitory Auth. of the State of N.Y., 74 AD3d 675[1st Dept 2010]).
Plaintiff testified that he slipped while going from his car to a trailer and that, during the twodays immediately before his accident, he had lodged multiple complaints to the foreman andsuperintendents about snow and/or ice covering that area. Two of his coworkers also testified thatthe area had been covered in a slippery sheet of ice four to six inches thick for about three daysprior to plaintiff's accident. The day before plaintiff's accident, another worker slipped on ice,albeit at a different location within the work site, and the Department of EnvironmentalPreservation's project manager, the "lead on-site" figure, testified that, if there was an accident,he would be notified via email. Viewing all of the evidence in a light most favorable to plaintiff,and drawing all reasonable inferences in his favor, as is required at this procedural posture (see Vega v Restani Constr. Corp., 18NY3d 499, 503 [2012]), a question of fact exists as to whether the City had actual orconstructive notice of the icy condition that caused plaintiff's injury (see Gordon v AmericanMuseum of Natural History, 67 NY2d 836, 837-838 [1986]; Callan v Structure Tone, Inc., 52 AD3d334 [1st Dept 2008]; Lewis vLower E. Side Tenement Museum, 40 AD3d 438, 439 [1st Dept 2007]).
Plaintiff's Labor Law § 241 (6) claim was properly dismissed because the IndustrialCode [*2]provisions set forth in the supplemental bill ofparticulars are not applicable. Here, the open, unpaved area where plaintiff was walking when hefell was not "a floor, passageway, walkway, scaffold, platform or other elevated workingsurface," within the purview of 12 NYCRR 23-1.7 (d) (see Cook v Orchard Park Estates, Inc., 73 AD3d 1263 [3d Dept2010]; Porazzo v City of New York,39 AD3d 731 [2d Dept 2007]; Roberts v Worth Constr., Inc., 21 AD3d 1074 [2d Dept 2005];Lawyer v Hoffman, 275 AD2d 541 [3d Dept 2000]). Nor was the area a floor, platform orsimilar area where people "work or pass," and no "tripping hazard" is alleged, under 12 NYCRR23-1.7 (e) (2) (see Cook, 73 AD3d 1263; Scofield v Trustees of Union Coll., 288AD2d 807 [3d Dept 2001]). Concur—Tom, J.P., Saxe, Richter, Abdus-Salaam andFeinman, JJ.