MERLO v. Ecker Window Corp., et al., Defendants. (2024)

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered January 9, 2023, which denied plaintiff's motion for partial summary judgment on liability, unanimously affirmed, without costs.  Appeals from orders, same court and Justice, entered January 9, 2023, which resolved certain discovery matters, unanimously dismissed, without costs, as abandoned.

Plaintiff is correct that the outstanding discovery did not warrant denial of his motion, as it concerned damages rather than liability.  Nevertheless, the motion was properly denied on its merits since questions of fact exist as to whether plaintiff's fall occurred in a passageway so as to implicate Industrial Code (12 NYCRR) § 23–1.7(e)(1) (see Pawlicki v. 200 Park, L.P., 199 AD3d 578, 579 [1st Dept 2021];  Prevost v. One City Block LLC, 155 AD3d 531, 535 [1st Dept 2017]).  Regarding plaintiff's Labor Law § 200 and common-law negligence claims, questions of fact exist as to whether defendants had notice of the condition that allegedly caused plaintiff's fall (see Coon v. WFP Tower B Co. L.P., 220 AD3d 407, 408–409 [1st Dept 2023]).