SMITH v. <<

Supreme Court, Appellate Division, First Department, New York.

Douglas P. SMITH, Plaintiff-Appellant, v.

HINES GS PROPERTIES, INC., et al., Defendants/Third-Party Plaintiffs-Respondents, v. Koehler Masonry Corp., et al., Third-Party Defendants-Respondents.

Decided: May 18, 2006

TOM, J.P., SAXE, NARDELLI, GONZALEZ, CATTERSON, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Malapero & Prisco, LLP, New York (Frank J. Lombardo of counsel), for Hines GS Properties, Inc., FDA Queens L.P. and Turner Construction Company, respondents. Camacho, Mauro & Mulholland, LLP, New York (Kathleen M. Mulholland of counsel), for Koehler Masonry Corp., respondent. Carroll McNulty Kull LLC, New York (Michael Schneider of counsel), for Liberty Mechanical Company, respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered April 18, 2005, which, to the extent appealed from, granted defendants' motion for summary judgment dismissing so much of the complaint as based on Labor Law § 241(6), unanimously reversed, on the law, without costs, that portion of the motion denied, and the claim under § 241(6) reinstated.

The open area between the building under construction and the materials storage trailers was not a “passageway” or walkway covered by Industrial Code (12 NYCRR) § 23-1.7(e)(1) (see Dalanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 [2003] ).   Nevertheless, the tradesmen at the site routinely traversed this physically defined area as their only access to equipment and materials, making it arguably an integral part of the work site.   A question of fact is thus presented as to whether the spot where plaintiff's fall occurred was a “working area” within the meaning of 12 NYCRR § 23-1.7(e)(2) (see Maza v. University Ave. Dev. Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149 [2004];  but see Muscarella v. Herbert Constr., 265 A.D.2d 264, 697 N.Y.S.2d 35 [1999] ).

We decline to consider the arguments for affirmative relief raised herein by the non-appealing defendants/third-party plaintiffs.