ARIAS v. RECIFE REALTY CO (2019)

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered December 8, 2017, which denied defendant/third-party plaintiff's (defendant) motion for summary judgment dismissing the complaint and all claims against it and summary judgment on its indemnification claims against third-party defendant (Island Painting), unanimously affirmed, without costs.

Plaintiff, an evening cleaner in an office building, alleges that she was injured as a result of inhaling toxic fumes from a paint stripping product used by Island Painting, a subcontractor of defendant, during a renovation project in the building.

Defendant failed to establish prima facie that it did not have actual or constructive notice of the alleged dangerous condition of the premises in time to take corrective measures (see Sosa v. 46th St. Dev. LLC, 101 A.D.3d 490, 493, 955 N.Y.S.2d 589 [1st Dept. 2012];  Kittelstad v. Losco Group, Inc., 92 A.D.3d 612, 939 N.Y.S.2d 382 [1st Dept. 2012] ).  Defendant submitted no evidence with respect to notice.  However, there is evidence in the record that defendant had superintendents on site who oversaw the subcontractors' work and that defendant had a duty to notify and warn the building owner and its occupants of hazardous work undertaken on the project site so as to safeguard the building's occupants against exposure to such hazards.  Thus, issues of fact exist as to whether defendant knew of the scheduled use of the paint stripper and of the product's toxicity and yet failed to warn the building owner and occupants to prevent harm to them.  These issues of fact as to negligence also preclude summary judgment in defendant's favor on its claim for contractual indemnification by Island Painting (see Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 181, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990] ).