Opinion
2014-01-28
Mahamadou GORY, Plaintiff–Respondent, v. NEIGHBORHOOD PARTNERSHIP HOUSING DEVELOPMENT FUND COMPANY, INC., Defendant–Appellant, A Aleem Construction, Inc., et al., Defendants. [And a Third Third–Party Action].
French & Casey, LLP, New York (Douglas R. Rosenzweig of counsel), for appellant. Buttafuoco & Associates, PLLC, Woodbury (Jason Murphy of counsel), for respondent.
French & Casey, LLP, New York (Douglas R. Rosenzweig of counsel), for appellant. Buttafuoco & Associates, PLLC, Woodbury (Jason Murphy of counsel), for respondent.
ACOSTA, J.P., SAXE, MOSKOWITZ, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered January 17, 2013, which, to the extent appealed from, denied defendant Neighborhood Partnership Housing Development Fund Company, Inc.'s motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 240(1) claims and the Labor Law § 241(6) claim predicated upon Industrial Code (12NYCRR) § 23–3.3(c) as against it and summary judgment on its indemnification claims against defendant West 132nd Street, LLC, and granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, unanimously modified, on the law, to grant Neighborhood's motion for summary judgment dismissing the common-law negligence, Labor Law §§ 200 and 241(6) claims and summary judgment on its contractual indemnification claim against West 132nd Street, and otherwise affirmed, without costs.
Contrary to defendant Neighborhood's contention, the fact that the stairway on which plaintiff was working when he was injured was originally constructed as a permanent structure does not remove it from the reach of Labor Law § 240(1). Not only had the stairway provided the sole means of access to the floors of the building during the demolition phase, but, in addition, it was an elevated surface on which plaintiff was required to work to complete his task of breaking up the marble pieces covering each step. The surrounding walls had been demolished, and the staircase had no guard rails. Thus, “plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ).
Since plaintiff contends that his injury arose from a dangerous condition of the workplace, Neighborhood established prima facie that it was not liable under common-law negligence principles or Labor Law § 200 by submitting a sworn affidavit by its principal stating that no one from Neighborhood ever visited the demolition site or otherwise had notice of the dangerous condition of the staircase ( see Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 9, 919 N.Y.S.2d 129 [1st Dept.2011] ). In opposition, plaintiff failed to submit admissible evidence raising an issue of fact whether Neighborhood created or had actual or constructive notice of the dangerous condition.
We assume without deciding that the motion court properly allowed plaintiff to amend his bill of particulars, without leave of court, a week after Neighborhood moved for summary judgment, to add a new Labor Law § 241(6) claim predicated on a violation of Industrial Code (12 NYCRR) § 23–3.3(c). However, plaintiff offered no competent evidence that his injury was proximately caused by a failure to conduct continuing inspections during the demolition process “to detect any hazards resulting from weakened or deteriorated floors or walls or from loosened materials” (12 NYCRR 23–3.3 [c] ). Furthermore, it is undisputed that plaintiff's supervisor inspected the subject staircase before permitting plaintiff to begin his assignment.
Given the absence of any evidence of negligence on its part, Neighborhood is entitled to summary judgment on its contractual indemnification claim against defendant West 132nd Street ( see Mahoney v. Turner Constr. Co., 37 A.D.3d 377, 380, 831 N.Y.S.2d 47 [1st Dept.2007] ).