Opinion
01-03-2017
Domenick J. JAYCOXE, Plaintiff–Appellant, v. VNO BRUCKNER PLAZA, LLC, et al., Defendants–Respondents, First New York Partners Management, Inc., etc., Defendant.
Stefano A. Filippazzo, P.C., Brooklyn (Louis A. Badolato of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondents.
Stefano A. Filippazzo, P.C., Brooklyn (Louis A. Badolato of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondents.
FRIEDMAN, J.P., SWEENY, RICHTER, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about February 8, 2016, which, insofar as appealed from as limited by the briefs, granted defendants-respondents' motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims, unanimously reversed, on the law, without costs, the motion denied, and the common-law negligence and Labor Law § 200 claims reinstated.
Plaintiff claims he was injured when the ladder he was standing on slipped out from under him because it was missing the proper footing. Where, as here, plaintiff alleged that defendants—the premises owners—provided him with the defective ladder, "the legal standard that governs claims under Labor Law § 200 is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof," not whether the accident arose out of the means and methods of plaintiff's work (Chowdhury v. Rodriguez, 57 A.D.3d 121, 123, 867 N.Y.S.2d 123 [2d Dept.2008] ; see Cevellos v. Morning Dun Realty, Corp., 78 A.D.3d 547, 549, 911 N.Y.S.2d 329 [1st Dept.2010] ; Higgins v. 1790 Broadway Assoc., 261 A.D.2d 223, 224–225, 691 N.Y.S.2d 31 [1st Dept.1999] ).
The conflicting deposition testimony submitted by the parties shows that there is a triable issue as to whether defendants provided plaintiff with the allegedly defective ladder. Moreover, plaintiff's testimony that the ladder was missing its feet was sufficient to raise an issue of fact as to whether defendants had constructive notice of the defect because of its visible and apparent nature (see Patrikis v. Arniotis, 129 A.D.3d 928, 929, 12 N.Y.S.3d 174 [2d Dept.2015] ; Higgins, 261 A.D.2d at 225, 691 N.Y.S.2d 31 ).