PONCE v. CITY OF NEW YORK (2023)

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered on or about May 12, 2022, which, to the extent appealed from as limited by the briefs, granted defendant Dormitory Authority of the State of New York's (DASNY) motion for summary judgment dismissing plaintiffs’ common-law negligence and Labor Law §§ 200 and 241(6) claims as against it, and denied plaintiffs’ cross-motion for summary judgment on their Labor Law § 200 claim, unanimously modified, on the law, to deny DASNY's motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims, and otherwise affirmed, without costs.

In this action arising from a fall on ice at a construction project, deposition testimony established that DASNY project managers generally arrived at 7:30 a.m. each morning.  Given DASNY failed to address the fact with either affidavits or documentary evidence that its employees were not at the project the morning of plaintiff's accident, it failed to make out a prima facie showing that it did not have actual or constructive notice of the condition of the site, which plaintiff described as covered in a large thick sheet of ice (see Singh v. Manhattan Ford Lincoln, Inc., 188 A.D.3d 506, 507, 132 N.Y.S.3d 287 [1st Dept. 2020];  Gardner v. Tishman Constr. Corp., 138 A.D.3d 415, 416–417, 30 N.Y.S.3d 9 [1st Dept. 2016]).  Plaintiff's alleged injury was not caused by a hazard inherent in the work he was obligated to perform.  His work was limited to the inside of the structures and not to remedy ice in the area between the buildings where he slipped and fell (cf.  Polgano v. New York City Educ. Constr. Fund, 6 A.D.3d 222, 774 N.Y.S.2d 324 [1st Dept. 2004], lv denied 3 N.Y.3d 601, 782 N.Y.S.2d 404, 816 N.E.2d 194 [2004]).  Accordingly, DASNY was not entitled to dismissal of the common-law negligence or Labor Law § 200 claims against it.  Conversely, plaintiffs were not entitled to summary judgment on their Labor Law § 200 claim, as questions of fact exist regarding notice (see Langer v. MTA Capital Constr. Co., 184 A.D.3d 401, 402, 125 N.Y.S.3d 694 [1st Dept. 2020]).

The motion court correctly dismissed plaintiff's Labor Law § 241(6) claim.  The location of plaintiff's fall, which he described as an open area, was not a walkway or pathway so as to implicate Industrial Code (12 NYCRR) § 23–1.7(d) (see German v. Antonio Dev., LLC, 128 A.D.3d 579, 580, 10 N.Y.S.3d 205 [1st Dept. 2015];  Jennings v. Lefcon Partnership, 250 A.D.2d 388, 389, 673 N.Y.S.2d 85 [1st Dept. 1998], lv denied 92 N.Y.2d 819, 685 N.Y.S.2d 421, 708 N.E.2d 178 [1999]).