LIU v. ELECTRIC OF NEW YORK INC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated September 12, 2024.  The order, insofar as appealed from, granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging common-law negligence.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging common-law negligence is denied.

The plaintiff, an HVAC maintenance worker employed by the American Museum of Natural History (hereinafter the Museum), commenced this action to recover damages for personal injuries against the defendant, an independent contractor hired by the Museum, alleging, inter alia, common-law negligence.  The plaintiff alleged that in October 2020, he was climbing a ladder owned by the defendant when one of the rungs cracked, causing him to fall and sustain injuries.  The defendant moved, among other things, for summary judgment dismissing the cause of action alleging common-law negligence.  In an order dated September 12, 2024, the Supreme Court, inter alia, granted that branch of the defendant's motion.  The plaintiff appeals.

“A defendant that is not an owner, general contractor, or agent pursuant to the Labor Law with regard to a plaintiff's work may nonetheless be held liable to the plaintiff under a theory of common-law negligence where the work the defendant performed created the condition that caused the plaintiff's injury” (Claesen v. VRD Contr., Inc., 241 A.D.3d 494, 498, 239 N.Y.S.3d 265 [internal quotation marks omitted];  see Sledge v. S.M.S. Gen. Contrs., Inc., 151 A.D.3d 782, 783, 54 N.Y.S.3d 666).  “An award of summary judgment in favor of a subcontractor dismissing a negligence cause of action is improper where the evidence raise[s] a triable issue of fact as to whether [the subcontractor's] employee created an unreasonable risk of harm that was the proximate cause of the injured plaintiff's injuries” (Poracki v. St. Mary's R.C. Church, 82 A.D.3d 1192, 1195, 920 N.Y.S.2d 233 [internal quotation marks omitted];  see Delaluz v. Walsh, 228 A.D.3d 619, 622, 212 N.Y.S.3d 719;  Erickson v. Cross Ready Mix, Inc., 75 A.D.3d 519, 523, 906 N.Y.S.2d 284).

Here, the defendant's submissions in support of that branch of its motion which was for summary judgment dismissing the cause of action alleging common-law negligence failed to eliminate triable issues of fact with regard to that cause of action.  Contrary to the defendant's contention, the evidence submitted in support of its motion, which included a transcript of the plaintiff's deposition testimony, failed to eliminate triable issues of fact as to whether it created an unreasonable risk of harm by leaving a defective ladder on the premises in the manner in which it did and whether that risk was a proximate cause of the plaintiff's injuries (see Claesen v. VRD Contr., Inc., 241 A.D.3d at 499, 239 N.Y.S.3d 265;  Delaluz v. Walsh, 228 A.D.3d at 623, 212 N.Y.S.3d 719;  Martinez v. 281 Broadway Holdings, LLC, 183 A.D.3d 712, 715, 124 N.Y.S.3d 52).

Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging common-law negligence.

The parties' remaining contentions are either without merit or not properly before this Court.

CONNOLLY, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.