Opinion
14608 Index No. 153678/14 Case No. 2021-00963
11-16-2021
Michael DAVIS, Plaintiff–Appellant, v. The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK et al., Defendants–Respondents, Columbia University Medical Center et al., Defendants. [And Third–Party Actions]
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant. Cascone & Kluepfel, LLP, Garden City (Howard B. Altman of counsel), for respondents.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant.
Cascone & Kluepfel, LLP, Garden City (Howard B. Altman of counsel), for respondents.
Manzanet–Daniels, J.P., Kapnick, Mazzarelli, Moulton, Scarpulla, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered April 18, 2019, which, to the extent appealed from, granted defendants The Trustees of Columbia University in the City of New York and Sciame Construction, LLC's motion for summary judgment insofar as dismissing plaintiff's common-law negligence and Labor Law § 200 claims and denied plaintiff's motion for summary judgment on his Labor Law § 241(6) claims predicated on violation of Industrial Code §§ 23–1.7(e)(2) and 23–1.7(f), unanimously modified, on the law, to reinstate plaintiff's common-law negligence and Labor Law § 200 claims, and otherwise affirmed, without costs.
The court properly denied both parties’ motions for summary judgment on plaintiff's Labor Law § 241(6) claim. Concerning the alleged violation of Industrial Code § 23–1.7(e)(2), issues of fact exist as to whether the wood plaintiff stepped on was integral to the work being performed or constituted an accumulation of debris from previous work (see Rossi v. 140 W. JV Mgr. LLC, 171 A.D.3d 668, 668, 99 N.Y.S.3d 38 [1st Dept. 2019] ; Serrano v. Consolidated Edison Co. of N.Y. Inc., 146 A.D.3d 405, 405–406, 44 N.Y.S.3d 392 [1st Dept. 2017] ). Concerning the alleged violation of Industrial Code § 23–1.7(f), defendant failed to establish that the height difference between the two levels did not require a vertical passage as contemplated by the Code provision (see Ferguson v. Durst Pyramid, LLC, 178 A.D.3d 634, 117 N.Y.S.3d 12 [1st Dept. 2019] ; McGarry v. CVP 1 LLC, 55 A.D.3d 441, 441–442, 866 N.Y.S.2d 76 [1st Dept. 2008] ; cf. Francescon v. Gucci Am., Inc., 105 A.D.3d 503, 504, 964 N.Y.S.2d 8 [1st Dept. 2013] ). Issues of fact exist, however, as to whether the failure to provide such a passage was a proximate cause of the accident.
Plaintiff's Labor Law § 200 and common-law negligence claims should not have been dismissed. In claims arising from an alleged defective or dangerous condition existing at the premises, liability may attach to the owner or general contractor if they either created the condition or had actual or constructive notice of it (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143–144, 950 N.Y.S.2d 35 [1st Dept. 2012] ). An alleged accumulation of debris may constitute a dangerous condition (see Singh v. Manhattan Ford Lincoln, Inc., 188 A.D.3d 506, 507, 132 N.Y.S.3d 287 [1st Dept. 2020] ; Spencer v. Term Fulton Realty Corp., 183 A.D.3d 441, 443, 123 N.Y.S.3d 599 [1st Dept. 2020] ). Defendants failed to establish that they lacked constructive notice of the alleged accumulation of debris.