SMITH v. Hirani Engineering & Surveying, P.C., Defendant. (2007)

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about July 26, 2006, which, in denying so much of the motion by third third-party defendant Eurotech Construction Company (not a party to this appeal) for summary judgment dismissing plaintiff's claim under Labor Law § 241(6) as based on Industrial Code (12 NYCRR) § 23-1.7(e), found that plaintiff had also stated claims under § 241(6) as based on 12 NYCRR § 23-2.7(e) and § 23-1.7(b)(1)(I), unanimously modified, on the law, the finding as to § 23-1.7(b)(1)(I) vacated, and otherwise affirmed, without costs.

Order, same court, Justice and entry date, which denied the motion by defendants McClier, Ruttura & Sons, NYP Holdings and New York City Industrial Development Agency for an order pursuant to CPLR 603, bifurcating the trial into liability and damages sections, unanimously affirmed, without costs.

Order, same court, Justice and entry date, which denied defendant Ruttura's motion to sever its third-party indemnification claim for early trial before the main action, unanimously modified, on the law, and the motion granted only to the extent of severing the third-party claim, and otherwise affirmed, without costs.

 In upholding the viability of the claim with regard to § 23-1.7(e)(1) of the Industrial Code, the court properly noted that § 23-2.7 was also applicable to the facts herein, in that plaintiff claims to have fallen from a staircase on a construction site that lacked railings (see Kanarvogel v. Tops Appliance City, 271 A.D.2d 409, 411, 705 N.Y.S.2d 644 [2000], lv. dismissed 95 N.Y.2d 902, 716 N.Y.S.2d 642, 739 N.E.2d 1147 [2000] ).   However, it erred in finding § 23-1.7(b)(1)(I) applicable, since a staircase is not considered a “hazardous opening” (see Contrera v. Gesher Realty Corp., 1 A.D.3d 111, 766 N.Y.S.2d 200 [2003];  Frank v. Meadowlakes Dev. Corp., 256 A.D.2d 1141, 686 N.Y.S.2d 540 [1998] ).

 The court did not improvidently exercise its discretion in denying the motion for a bifurcated trial, since plaintiff set forth a valid reason why the damages issue was intertwined with the liability issue (see Shea v. 5008 Broadway Assoc., 292 A.D.2d 292, 739 N.Y.S.2d 155 [2002] ).

 We modify the third order on appeal to grant severance of the contractual indemnification claim from the main action.   To permit this dispute to be tried before the same jury charged with determining the negligence issue would be prejudicial, since it would put before the jury the existence of liability insurance coverage (see Transamerica Ins. Co. v. Tolis Inn, 129 A.D.2d 512, 514 N.Y.S.2d 351 [1987] ).   We leave undisturbed the court's conclusion that adjudication of the indemnification claim prior to determination of liability would be premature.