| Velasquez v 795 Columbus LLC |
| 2013 NY Slip Op 01174 [103 AD3d 541] |
| February 21, 2013 |
| Appellate Division, First Department |
| Carlos Velasquez, Respondent, v 795 ColumbusLLC et al., Appellants. |
—[*1] Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), forrespondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), enteredDecember 16, 2011, which granted plaintiff's motion for partial summary judgment onhis Labor Law § 241 (6) claim and on his Labor Law § 200 claim to theextent it is asserted against defendant Tishman Construction, and denied defendants'cross motion for summary judgment dismissing the Labor Law § 200 claim andthe claim for lost wages, unanimously affirmed, without costs.
Plaintiff alleges that he was injured when he slipped and fell on "mud, rocks andwater" at a construction site that, at the time, consisted of an open excavation. He claimsthat a muddy condition had formed on the concrete floor at the bottom of the site due towater from rain and a nearby water main break that occurred a few days before theaccident.
Although 12 NYCRR 23-1.7 (e), which protects workers from trippinghazards, is inapplicable to the facts of this case, we find that 12 NYCRR 23-1.7 (d),which protects workers against slipping hazards, is an applicable predicate forthe Labor Law § 241 (6) claim (see e.g. Raffa v City of New York, 100 AD3d 558, 559[1st Dept 2012]; Carty v Port Auth. of N.Y. & N.J., 32 AD3d 732, 733 [1st Dept2006], lv denied 8 NY3d 814 [2007]; Militello v 45 W. 36th St. Realty Corp., 15 AD3d 158,159-160 [1st Dept 2005]; Greenfield v New York Tel. Co., 260 AD2d 303, 304[1st Dept 1999], lv denied 94 NY2d 755 [1999]). Plaintiff did not raise theapplicability of 12 NYCRR 23-1.7 (d) in his summary judgment motion (although heasserted it in his complaint and verified bill of particulars), but we reach the issuebecause it is a legal issue that is apparent on the record, and the determination could nothave been avoided if the issue had been brought to defendants' attention on the motion(see Rajkumar v Budd Contr.Corp., 77 AD3d 595 [1st Dept 2010], citing Chateau D' If Corp. v City ofNew York, 219 AD2d 205, 209 [1st Dept 1996], lv denied 88 NY2d 811[1996]).
Plaintiff was working on a "floor" within the meaning of 12 NYCRR 23-1.7 (d) (see Temes v Columbus Ctr.LLC, 48 AD3d 281 [1st Dept 2008]); the floor became covered with mud andwater due to a water main break and rain. As the mud was not part of the floor and not anintegral part of plaintiff's work, it constituted a "foreign substance" that caused slipperyfooting (see Conklin vTriborough Bridge & Tunnel Auth., 49 AD3d 320 [1st Dept 2008]; Cottonev Dormitory Auth. of State of N.Y., 225 AD2d 1032 [4th Dept 1996]). Further,plaintiff's testimony that his foreman instructed him to work on the day of the accident,despite the [*2]presence of a muddy and wet condition,established negligence for which defendants may be held vicariously liable (seeRizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]), and defendantsfailed to raise a triable issue of fact in opposition. The deposition testimony of TishmanConstruction's general superintendent that there was no hazardous slippery condition isconclusory. Nor did defendants submit any evidence that plaintiff was contributorilynegligent (see id.; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,502 n 4 [1993]).
As to the Labor Law § 200 claim, defendants failed, as discussed, to rebutplaintiff's prima facie showing of a hazardous condition, and the evidence shows thatTishman—but not 795 Columbus—had notice of the water main break andthe muddy condition (seeHernandez v Columbus Ctr., LLC, 50 AD3d 597, 598 [1st Dept 2008];Roppolo v Mitsubishi Motor Sales of Am., 278 AD2d 149, 150 [1st Dept 2000]).
The motion court correctly held that plaintiff's lost wages claim is an issue ofdamages to be addressed at trial. Concur—Andrias, J.P., Saxe, DeGrasse,Abdus-Salaam and Feinman, JJ.