SINGH v. <<

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

Darshan SINGH, et al., Plaintiffs-Respondents, v.

YOUNG MANOR, INC., Defendant/Third-Party Plaintiff-Appellant, v. Christie's Enterprises, Ltd., Third-Party Defendant-Respondent.

Decided: November 15, 2005

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, WILLIAMS, MALONE, JJ. Mauro Goldberg & Lilling LLP, Great Neck (Katherine Herr Solomon of counsel), for appellant. Lisa M. Comeau, Mineola, for Darshan Singh and Satwant Kaur, respondents. Goldstein & Avrutine, Syosset (Steven R. Goldstein of counsel), for Christie's Enterprises, Ltd., respondent.

Judgment, Supreme Court, New York County (Paula J. Omansky, J.), entered June 9, 2004, upon a jury verdict, awarding plaintiff damages, unanimously affirmed, without costs.

 Defendant Young Manor was properly found liable under Labor Law § 200 on the ground that it created the hazard that caused plaintiff's injury.   Given defendant's creation of the hazard, proof that it had supervision and control of the injury-producing work was unnecessary (see Murphy v. Columbia Univ., 4 A.D.3d 200, 202, 773 N.Y.S.2d 10 [2004] ), as was proof that defendant had notice of the hazard (see Torres v. New York City Tr. Auth., 305 A.D.2d 165, 759 N.Y.S.2d 72 [2003];  Soto v. City of New York, 276 A.D.2d 449, 716 N.Y.S.2d 1 [2000];  Martinez v. City of New York, 224 A.D.2d 242, 243, 637 N.Y.S.2d 706 [1996] ).

 In light of the circumstances under which the accident occurred, i.e., plaintiff stepped on a nail near a pile of debris in the work area that had been permitted to accumulate for several days, Industrial Code (12 NYCRR) § 23-1.7(e)(2) is applicable to support plaintiff's Labor Law § 241(6) claim (see Maza v. Univ. Ave. Dev. Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149 [2004];  Canning v. Barney's New York, 289 A.D.2d 32, 734 N.Y.S.2d 116 [2001] ).   Nor, in light of the accumulated debris, is there merit to defendant's contention that hazard must be viewed as having been an integral part of plaintiff's work removing wood paneling (see Maza, supra ).

Defendant's contentions that the jury verdict failed to address an essential element of plaintiff's Labor Law § 241(6) cause of action, namely, whether violation of Code § 23-1.7(e)(2) constituted negligence, and that such failure was inconsistent with the court's charge, are unpreserved, no objection having been made to the jury sheet (see Laboda v. VJV Dev. Corp., 296 A.D.2d 441, 745 N.Y.S.2d 67 [2002] ).   In any event, the court's charge, together with the verdict sheet, conveyed to the jury that it was not to proceed to determine whether violation of Code § 23-1.7(e) caused plaintiff's injury unless it found that such violation constituted negligence.   Accordingly, defendant was not prejudiced by the verdict sheet omission (see Brewster v. Prince Apts., Inc., 264 A.D.2d 611, 616, 695 N.Y.S.2d 315 [1999], lv. denied 94 N.Y.2d 762, 708 N.Y.S.2d 51, 729 N.E.2d 708 [2000] ).

The third-party indemnification claim was properly dismissed in view of the verdict finding defendant affirmatively negligent (see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 658 N.Y.S.2d 903, 680 N.E.2d 1200 [1997] ).