ORELLANA v. 386 PARK SOUTH LLC (2023)

Supreme Court, Appellate Division, First Department, New York.

Augusto ORELLANA, Plaintiff–Appellant, v. 386 PARK SOUTH LLC, Defendant–Respondent.
386 Park South LLC, Third Party Plaintiff, v. Lawrence Exterior Restoration Corp., Third Party Defendant–Respondent. [And Other Third Party Actions]

1162

Decided: December 07, 2023

Webber, J.P., Scarpulla, Pitt–Burke, Rosado, O'Neill Levy, JJ.

Subin Associates, LLP, New York (Denise A. Rubin of counsel), for appellant. Romano Benowitz & Brochetelli, LLP, New York (Jonathan T. Uejio of counsel), for 386 Park South LLC, respondent. Black Marjieh & Sanford LLP, Elmsford (Leslie Luke of counsel), for Lawrence Exterior Restoration Corp., respondent.

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered on May 22, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's cross-motion for summary judgment on his Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) § 23–1.7(d), unanimously affirmed, without costs.

Plaintiff allegedly slipped and fell on a slippery substance in a passageway while carrying a concrete bag on his shoulder. Plaintiff argued that he slipped on debris and a wet/greasy substance that was in the passageway that he was walking through, and the debris and the greasy/wet substance on which he slipped was a “foreign substance” within the meaning of 12 NYCRR 23–1.7(d).

Plaintiff's affidavit, and the attached unauthenticated photographs, were insufficient to establish his prima facie entitlement to summary judgment. Plaintiff failed to establish that the source of the debris he fell on was not associated with the work that he or his coworkers were performing at the construction site (see Galazka v. WFP One Liberty Plaza Co., LLC, 55 A.D.3d 789, 790, 865 N.Y.S.2d 689 [2d Dept. 2008], lv denied 12 N.Y.3d 709, 2009 WL 1259016 [2009]).

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