| Porteous v J-Tek Group, Inc. |
| 2015 NY Slip Op 00802 [125 AD3d 411] |
| February 3, 2015 |
| Appellate Division, First Department |
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| Esley Porteous, Appellant-Respondent, v J-TekGroup, Inc., et al., Respondents, and Six Sigma USA, Inc.,Appellant. |
De Caro & Kaplen, LLP, Pleasantville (Michael V. Kaplen of counsel), forappellant-respondent.
Law Offices of E. Michael Rosenstock, P.C., Rockville Centre (E. MichaelRosenstock of counsel), for appellant and respondents.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered February26, 2014, which granted so much of defendants' motion for summary judgment as soughtto dismiss the complaint as against defendants J-Tek Group, Inc. and 449 WashingtonLLC, and denied so much of the motion as sought to dismiss the complaint as againstdefendant Six Sigma USA, Inc., unanimously modified, on the law, to deny the motionas to 449 Washington LLC, and J-Tek Group, Inc., and otherwise affirmed, withoutcosts.
Plaintiff seeks damages for injuries he sustained when a falling piece of wood struckhim in the head as he was walking on the sidewalk in front of a building owned bydefendant 449 Washington LLC that was undergoing construction by defendant SixSigma USA, Inc., an independent contractor hired by 449 Washington. There isconflicting evidence in the record as to the source of the falling wood, whether SixSigma was performing, or was scheduled to perform, exterior work at the time of theaccident, and whether this work posed an inherent danger to pedestrians on the publicsidewalk abutting the building. Thus, issues of fact exist whether 449 Washington can beheld liable for plaintiff's injuries as a building owner with a non-delegable duty not tocause harm to those traveling on the nearby public sidewalk or as an owner who knew orhad reason to know that its independent contractor's work involved special dangersinherent in the work or dangers that should have been anticipated (see Emmons vCity of New York, 283 AD2d 244 [1st Dept 2001]).
The project architect's disagreement with plaintiff's architect's reading of the plansand qualifications in rendering an opinion as to the source of the piece of wood thatstruck plaintiff, and defendants' challenge to the credibility of a witness who was walkingwith plaintiff at the time of the accident, are matters for resolution by the trier of fact(Alvarez v New York City Hous. Auth., 295 AD2d 225 [1st Dept 2002]).
Defendant Six Sigma admitted that it performed all the construction work on thebuilding, and, in moving for summary judgment, offered only speculation as to the causeof [*2]plaintiff's injury.
Defendant J-Tek Group, Inc. did not establish prima facie that it was not involved inthe project. Moreover the work permit was issued in its name therefore raising an issueof fact. Concur—Mazzarelli, J.P., Sweeny, Moskowitz, DeGrasse andManzanet-Daniels, JJ. [Prior Case History: 2014 NY Slip Op 30440(U).]