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Smith v. Hines GS Properties, Inc.

Appellate Division of the Supreme Court of New York, First Department
May 18, 2006
29 A.D.3d 433 (N.Y. App. Div. 2006)

Summary

finding that an "open area between the building under construction and the materials storage trailers," which was the "only access to equipment and materials" and which "the tradesmen at the site routinely traversed," was not "'passageway' or walkway" covered by Industrial Code § 23-1.7 [e]

Summary of this case from Sicoli v. Riverside Ctr. Parcel 2 Bit Assocs., LLC

Opinion

8563.

May 18, 2006.

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 section 241 (6) reinstated.

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.

Before: Tom, J.P., Saxe, Nardelli, Gonzalez and Catterson, JJ., concur.


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 AD2d 400). 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 AD3d 65; but see Muscarella v. Herbert Constr. Co., 265 AD2d 264 ).

We decline to consider the arguments for affirmative relief raised herein by the nonappealing defendants and third-party plaintiffs.


Summaries of

Smith v. Hines GS Properties, Inc.

Appellate Division of the Supreme Court of New York, First Department
May 18, 2006
29 A.D.3d 433 (N.Y. App. Div. 2006)

finding that an "open area between the building under construction and the materials storage trailers," which was the "only access to equipment and materials" and which "the tradesmen at the site routinely traversed," was not "'passageway' or walkway" covered by Industrial Code § 23-1.7 [e]

Summary of this case from Sicoli v. Riverside Ctr. Parcel 2 Bit Assocs., LLC

ruling that such an area was not a passageway despite the fact that "tradesmen at the site routinely traversed this physically defined area as their only access to equipment and materials"

Summary of this case from Homola v. Praxair, Inc.

In Smith v. Hines GS Props., Inc., 29 A.D.3d 433, 815 N.Y.S.2d 82 [1st Dept. 2008], we held that the area where the plaintiff fell was not a "passageway" within the meaning of NYCRR § 23–1.7(e)(1); unlike in this case, the plaintiff did not allege that it was a "walkway" within the meaning of 23–1.7(d).

Summary of this case from Potenzo v. City of New York

In Smith v. Hines GS Properties, Inc.. 29 A.D.3d 433 f A.D. 1st Dept 2006 ]) the court determined that a question of fact remained if the spot where the plaintiffs fall occured was a "working area" within the meanting of 12 NYCRR 23-1.7(e)(2).

Summary of this case from Dugan v. Port Auth. of N.Y. & N.J.

In Smith, the First Department held that "an 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)," despite the fact that "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" (id. at 433 [internal quotation marks and citation omitted]).

Summary of this case from Cabonargi v. W. Vill. Residences LLC

In Smith v Hines GS Props., Inc. (29 AD3d 433, 433 [1st Dept 2006]), the Court held that there was an issue of fact as to whether an area that tradesmen routinely traversed as their only access to equipment and materials was a "working area" within the meaning of section 23-1.7 (e) (2).

Summary of this case from Adagio v. N.Y. State Urban Dev. Corp.
Case details for

Smith v. Hines GS Properties, Inc.

Case Details

Full title:DOUGLAS P. SMITH, Appellant, v. HINES GS PROPERTIES, INC., et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 18, 2006

Citations

29 A.D.3d 433 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 3990
815 N.Y.S.2d 82

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The testimony of plaintiff as well as of witnesses Rudolph (Frendolph's president) and Kidder was consistent…

Potenzo v. City of New York

The other cases cited by the dissent are distinguishable. In Smith v. Hines GS Props., Inc., 29 A.D.3d 433,…