MAZA v. [And a Third-Party Action]. (2004)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered April 9, 2004, which, in an action by a laborer for personal injuries sustained when he tripped over debris and snow and ice in an interior courtyard at a construction site, insofar as appealed from, denied defendants owners' and general contractor's motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion for partial summary judgment determining the general contractor's liability under Labor Law § 200 and § 241(6) and the owners' liability under Labor Law § 241(6), unanimously affirmed, without costs.

 The general contractor was correctly found liable under Labor Law § 200 based on its employee's deposition testimony that it had authority to direct the various trades to clean up and had also directed its own employees to always keep the site clean (compare Hoelle v. New York Equities, 258 A.D.2d 253, 684 N.Y.S.2d 539 [1999] ), and plaintiff's deposition testimony, not disputed, that construction debris had been present and continued to accumulate in the courtyard area during the entire four months he was at the site.   However, with respect to the site's owners, neither side made a prima facie showing of either notice or supervisory authority (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).   Liability under section 200 is not negated by plaintiff's awareness that workers were throwing debris into the courtyard, or by the “open and obvious” nature of any danger;  rather, these factors go to plaintiff's comparative negligence (see Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 73, 773 N.Y.S.2d 38 [2004];  Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923, 767 N.Y.S.2d 44 [2003] ).

 Concerning the claims under Labor § 241(6), we find that the courtyard, which was completely enclosed by surrounding buildings and had to be traversed by plaintiff to get to and from his work area, was not a “passageway” under 12 NYCRR 23-1.7(e)(1) (see Jennings v. Lefcon Partnership, 250 A.D.2d 388, 673 N.Y.S.2d 85 [1998], lv. denied 92 N.Y.2d 819, 685 N.Y.S.2d 421, 708 N.E.2d 178 [1999];  O'Gara v. Humphreys & Harding, 282 A.D.2d 209, 723 N.Y.S.2d 25 [2001] ), but was a “working area” under 12 NYCRR 23-1.7(e) (2) (see Canning v. Barneys New York, 289 A.D.2d 32, 34-35, 734 N.Y.S.2d 116 [2001] ).   We also find that the pieces of wood, sheet rock and snow/ice that allegedly caused plaintiff to fall were “debris,” “scattered ․ materials” and “dirt” within the meaning of the latter regulation (see id. at 35, 734 N.Y.S.2d 116;   Boss v. Integral Constr. Corp., 249 A.D.2d 214, 672 N.Y.S.2d 92 [1998] ), and were not integral to plaintiff's work as a bricklayer (compare Vieira v. Tishman Constr. Corp., 255 A.D.2d 235, 679 N.Y.S.2d 618 [1998] ).   Negligence on plaintiff's part may require an apportionment of liability but does not absolve defendants of their own liability under § 241(6) (see Keegan v. Swissotel New York, 262 A.D.2d 111, 114, 692 N.Y.S.2d 39 [1999], lv. dismissed 94 N.Y.2d 858, 704 N.Y.S.2d 533, 725 N.E.2d 1095 [1999] ).

We have considered defendants' other arguments and find them unavailing.