BALE v. PYRON CORPORATION (1998)

Plaintiff commenced this action to recover damages for injuries he sustained when he slipped and fell while employed by third-party defendant on premises owned by defendant.   Plaintiff fell while walking from the construction site to a job trailer located outside a nearby building. Plaintiff was walking close to that building to avoid the wind, and he slipped and fell on snow-covered ice under an awning protecting a doorway from the run-off of water from the gutterless roof.

 Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the common-law negligence cause of action.   The “presence of ice below the gutterless roof raises a question of fact as to causation and [the owner's] responsibility * * * for defects on the premises over which he retains control” (El Shammaa v. Parent, 237 A.D.2d 684, 685, 654 N.Y.S.2d 437;  see also, Loguidice v. Fiorito, 254 A.D.2d 714, 678 N.Y.S.2d 225;  Migli v. Davenport, 249 A.D.2d 932, 672 N.Y.S.2d 551).

 The court properly granted that part of defendant's motion seeking summary judgment dismissing the Labor Law § 241(6) claim and third-party defendant's cross motion for the same relief.   The Labor Law § 241(6) claim is premised upon an alleged violation of 12 NYCRR 23-1.7(d) and (e).  Because the accident occurred in an open area and not on a defined walkway, passageway or path, section 23-1.7(d) does not apply (see, Hill v. Corning Inc., 237 A.D.2d 881, 882, 654 N.Y.S.2d 524, lv. dismissed in part and denied in part 90 N.Y.2d 884, 661 N.Y.S.2d 826, 684 N.E.2d 275;  McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 878, 629 N.Y.S.2d 358).   Section 23-1.7(e) also does not apply because plaintiff slipped on ice and did not trip as the result of an obstruction such as dirt or debris within the meaning of subdivision (e) (cf., Cafarella v. Harrison Radiator Div. of Gen. Motors, 237 A.D.2d 936, 654 N.Y.S.2d 910).

Order unanimously affirmed without costs.

MEMORANDUM: