Opinion
May 30, 1989
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the judgment entered December 18, 1987 is reversed, on the law, and a new trial is granted to the plaintiffs against the defendant; and it is further,
Ordered that the appeal from the judgment dated December 30, 1987 is dismissed, as the plaintiffs are not aggrieved parties with respect to that judgment (CPLR 5511); and it is further,
Ordered that the plaintiffs are awarded one bill of costs, payable by the defendant.
The plaintiff William T. Keyes alleges that he slipped on construction debris in an interior staircase in a building owned by his employer, the third-party defendant. The defendant was performing construction work on the premises at the time and it is alleged that the debris was left on the staircase by its employees. At the close of the evidence, the court granted the defendant's motion to dismiss the complaint, finding, inter alia, that as a matter of law, the defendant had no duty to protect the plaintiff William T. Keyes from risk of harm on the stairway and, additionally, had no notice of the debris.
The central issue is whether the defendant's employees, acting within the scope of their employment, created a dangerous condition on the stairway (see, Riviello v Waldron, 47 N.Y.2d 297). Under the circumstances of this case, this was an issue of fact which should have been submitted to the jury (see, Blum v Fresh Grown Preserve Corp., 292 N.Y. 241). This is particularly so where, as here, the issue of the defendant's culpability turned on questions concerning the credibility of witnesses (see, Lipsius v White, 91 A.D.2d 271, 276). With respect to the question of notice, if indeed it is demonstrated that the defendant created a dangerous condition on the stairway, notice need not be established as an element of the plaintiffs' case (see, Safran v Man-Dell Stores, 106 A.D.2d 560).
Since there must be a new trial, we note that, under the facts at bar, a charge under Labor Law § 241 (6) would have been appropriate (see, Reinitz v Arc Elec. Constr. Co., 104 A.D.2d 247). Bracken, J.P., Sullivan, Balletta and Rosenblatt, JJ., concur.