JONES v. Seco Engineering & Construction, Inc., defendant-appellant, et al., defendant.

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

Jim JONES, et al., plaintiffs-appellants, v. Anne FRIED, et al., respondents, Seco Engineering & Construction, Inc., defendant-appellant, et al., defendant.

Decided: September 26, 2005

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, ROBERT A. SPOLZINO, and ROBERT A. LIFSON, JJ. Parker & Waichman (DiJoseph & Portegello, P.C., New York, N.Y. [Arnold E. DiJoseph III] of counsel), for plaintiffs-appellants. Michael J. Caulfield (Carol R. Finocchio, New York, N.Y. [Lisa M. Comeau] of counsel), for defendant-appellant. Jacobson & Schwartz, Rockville Centre, N.Y. (Henry J. Cernitz of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Seco Engineering & Construction, Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County (Schmidt, J.), entered July 9, 2003, as is in favor of the defendants Anne Fried, Helen Itzkovitz, Irwin Resnick, and Rhoda Nahmanson, individually and doing business as Wolk Properties, Inc., and Wolk Properties, Inc., dismissing its cross claims insofar as asserted against those defendants, and the plaintiffs separately appeal from so much of the same judgment as is in favor of the defendants Anne Fried, Helen Itzkovitz, Irwin Resnick, and Rhoda Nahmanson, individually and doing business as Wolk Properties, Inc., and Wolk Properties, Inc., dismissing the complaint insofar as asserted against those defendants.

ORDERED that the judgment is modified, on the law, by (1) deleting the provision thereof dismissing the cross claims of the defendant Seco Engineering & Construction, Inc., insofar as asserted against the respondents and (2) deleting the provision thereof dismissing the claims predicated upon General Municipal Law § 205-e and General Obligations Law § 11-106 insofar as asserted by the plaintiffs against the respondents;  as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the cross claims of the defendant Seco Engineering and Construction, Inc., and the plaintiffs' claims predicated upon General Municipal Law § 205-e and General Obligations Law § 11-106 are reinstated against the respondents.

 On appeal, the defendant Seco Engineering and Construction, Inc. (hereinafter Seco), contends that the Supreme Court erred in dismissing its cross claims against the defendants Anne Fried, Helen Itzkovitz, Irwin Rosnick, and Rhoda Nahmanson, individually and doing business as Wolk Properties, Inc., and Wolk Properties, Inc. (hereinafter the Wolk defendants), who owned the building where the plaintiff police officer was injured.   We agree.   The deposition testimony of the Wolk defendants' managing agent, and of Seco's owner, was sufficient to raise a triable issue of fact as to whether the Wolk defendants had notice of an ongoing and recurring dangerous condition at the premises (see Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344, 783 N.Y.S.2d 661;  Hirschman v. City of New York, 193 A.D.2d 581, 597 N.Y.S.2d 154;  Alvarez v. Mendik Realty Plaza, 176 A.D.2d 557, 575 N.Y.S.2d 25;  O'Grady v. New York City Hous. Auth., 259 A.D.2d 442, 687 N.Y.S.2d 352;  Weisenthal v. Pickman, 153 A.D.2d 849, 851, 545 N.Y.S.2d 369).

 The Supreme Court also erred in dismissing the plaintiffs' General Municipal Law § 205-e claim insofar as asserted against the Wolk defendants.   The plaintiffs' allegation that the Wolk defendants violated 12 NYCRR 23-1.7(e)(2) and 23-2.1(b) by failing to keep the stairway where the accident occurred clear of construction dirt and debris is a sufficient predicate to support a claim under General Municipal Law § 205-e (see Jones v. Fried, 21 A.D.3d 1057, 803 N.Y.S.2d 590 [decided herewith];  Bongiovanni v. KMO-361 Realty Assocs., 268 A.D.2d 365, 702 N.Y.S.2d 263;  Scollin v. Theater for New City Found., 229 A.D.2d 355, 646 N.Y.S.2d 323), and a triable issue of fact exists as to whether the Wolk defendants had actual notice of a recurring dangerous condition which violated these provisions.   The existence of a triable issue of fact as to whether the Wolk defendants had notice of a recurring dangerous condition also precluded dismissal of the plaintiffs' common-law negligence claim based upon General Obligations Law § 11-106.

 However, the Supreme Court properly dismissed the plaintiffs' claims against the Wolk defendants to the extent that they allege violations of the Labor Law. The plaintiff police officer was not an “employee” or “employed” at the work site, and thus does not come within the class of persons “employed therein or lawfully frequenting the premises” who are entitled to the protection afforded by the “flat and unvarying duty” imposed by the Labor Law (see Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 561 N.Y.S.2d 892, 563 N.E.2d 263;  Bennett v. Fairchild Republic Charter, 298 A.D.2d 418, 748 N.Y.S.2d 260).

The parties' remaining contentions are either unpreserved for appellate review or without merit.

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