DOUGLAS v. [And a Third–Party Action] (2018)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about July 25, 2017, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and the Labor Law § 241(6) claim predicated upon Industrial Code (12 NYCRR) § 23–5.18(h), unanimously affirmed, without costs.

Plaintiff was injured while pulling a mobile scaffold with both hands, when she stepped backward and her left heel fell into one of the estimated 12–inch deep trenches in the concrete flooring, and a wheel of the scaffold dropped onto her foot.

Summary dismissal of the Labor Law § 200 and common-law negligence claims is precluded by testimony and photographic evidence that raises triable issues of fact as to whether defendants were obligated to maintain the safety of the premises (see Fraser v. Pace Plumbing Corp., 93 A.D.3d 616, 941 N.Y.S.2d 114 [1st Dept. 2012] ), were negligent in doing so, and had actual or constructive knowledge of the uncovered trenches in the concrete flooring where several trades were working at the time of plaintiff's accident (see Ventura v. Ozone Park Holding Corp., 84 A.D.3d 516, 923 N.Y.S.2d 67 [1st Dept. 2011] ).

Dismissal of the Labor Law § 241(6) claim is precluded by factual issues as to whether the injury to plaintiff's left leg was proximately caused by defendants' violation of 12 NYCRR 23–5.18(h), which provides, inter alia, that “[manually-propelled] [s]caffolds shall be moved only on level floors or equivalent surfaces free from obstructions and openings.”