SERRANO v. JUDLAU CONTRACTING INC (2026)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about September 19, 2024, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to establish prima facie that they had adequately provided protection around the raised metal plate corner that allegedly caused plaintiff to trip and fall.  Defendants' witness testified only that defendants' employees would place orange construction barrels around those raised areas, but did not establish that this general practice was actually followed on the day of the accident.  Accordingly, defendants' argument that they lacked notice of a tripping hazard is unavailing (see Attia v. Slazer Enters., LLC, 215 A.D.3d 413, 414, 187 N.Y.S.3d 22 [1st Dept 2023] ).  Defendants' photographic evidence of the barrels at the site of the accident was taken several hours before the accident and the end of the workday for defendants, and is not a substitute for evidence that defendants took steps to ensure that the barrels were actually in place at the end of the workday to prevent the accident, which is what defendants needed to demonstrate to shift the burden (see e.g. Manderson v. Phipps Houses Servs., Inc., 173 A.D.3d 459, 459, 103 N.Y.S.3d 40 [1st Dept 2019] ).

Any inconsistencies in plaintiff's testimony and affirmation about whether the barrels were in the immediate area when he fell at most raise credibility issues to be resolved at trial, but do not warrant a grant of summary judgment to defendants (see Escolastico v. Rigs Mgt. Co., LLC, 232 A.D.3d 491, 492, 222 N.Y.S.3d 414 [1st Dept 2024] ).  Further, defendants' argument that the hazard was open and obvious is conclusory and, in any event, only relevant to whether defendants had a duty to warn (see Navarro v. University Ave., L.P., 221 A.D.3d 412, 413, 197 N.Y.S.3d 234 [1st Dept 2023] ).  The alleged deficiencies in plaintiff's evidence and expert's submission are also irrelevant, because defendants failed to shift the burden to plaintiff to establish an issue of fact.

Finally, the storm in progress doctrine is inapplicable, because the record contains no evidence that the alleged dangerous condition was caused by a storm (see Lewis v. 311 Realty, LLC, 201 A.D.3d 591, 591–592, 158 N.Y.S.3d 559 [1st Dept 2022], lv denied 38 N.Y.3d 908, 2022 WL 1634107 [2022] ).

We have considered defendants' remaining contentions and find them unavailing.