84101 09 v. CW LLC (2012)

Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for respondent.

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Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered October 22, 2010, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment as to liability on their Labor Law § 240(1) claim, and denied defendant CW Equities, LLC's motion for summary judgment dismissing the complaint as against it and for conditional summary judgment on its cross claim for indemnification against defendant T.F.N. Development Corp., unanimously modified, on the law, to grant plaintiffs' motion, and otherwise affirmed, without costs.

Contrary to defendants' contention, the fact that the concrete walkway from which plaintiff John Burton fell was a permanent structure does not remove it from the coverage of Labor Law § 240(1).   The walkway provided access to the rear yard of the building under construction, extending over an approximately 15–foot–deep vaulted area below grade level.   However, it had no guard rails or other barriers.   Thus, “plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (see Runner v. New York Stock Exch., Inc., 13 N.Y.2d 599, 603 [2009] ).

Since plaintiff's injury did not arise from the method he used to perform his work, but from a dangerous condition of the workplace, it is not dispositive of his Labor Law § 200 claim that CW Equities did not control the work at the building site (see Urban v. No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 555 [2009];  Hernandez v. Columbus Ctr., LLC, 50 AD3d 597, 598 [2008] ).   Whether CW Equities had the requisite notice of the dangerous condition is an issue of fact raised by its principal's testimony that he visited the site approximately every other day (see Gordon v American Museum of Natural History, 67 N.Y.2d 836 [1986] ).   Similarly, as to plaintiff's common-law negligence claim, the record presents an issue of fact whether the dangerous condition should have been apparent upon visual inspection (see Urban, 62 AD3d at 555).

Although in his bill of particulars plaintiff did not allege a violation of Industrial Code (22 NYCRR) § 23–1.7(b)(1) as a predicate for their Labor Law § 241(6) claim, he identified it in opposition to CW Equities' motion, and CW Equities claims no prejudice from the late invocation of the provision (see Latchuk v. Port Auth. of N.Y. & N.J., 71 AD3d 560, 560–561 [2010];  Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d 231, 233 [2000] ).

The above-discussed issues of fact as to negligence on CW Equities' part preclude summary judgment on its claim for indemnification (see Vukovich v. 1345 Fee, LLC, 61 AD3d 533, 534 [2009] [contractual];  McCarthy v. Turner Constr., Inc., 17 NY3d 369, 377–378 [2011] [common-law] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK