Plaintiff's motion was properly denied as against defendant Linmar, L.P., because there are triable issues as to whether Linmar had violated its nondelegable duty of care to pedestrians passing by its premises by failing to erect any safety devices for the duration of United's work. Furthermore, plaintiff did not establish, as a matter of law, that the work performed by the independent contractor was inherently dangerous (see Kopinska v Metal Bright Maintenance Co., 309 AD2d 633 [1st Dept 2003]; see generally Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 381 [1995]). We have considered plaintiff's remaining arguments and find them unavailing.
The affirmation of the plaintiffs' counsel demonstrated a reasonable excuse for his failure to appear on the date of trial ( see Bazzini v. Hertz Corp., 183 AD2d 691; Chery v. Anthony, 156 AD2d 414, 416; Berman v. Brunswick Hosp. Ctr., 94 AD2d 736; Hargett v. Health Hosps. Corp. of City of N.Y., 88 AD2d 633). Furthermore, the plaintiffs demonstrated that they have a potentially meritorious cause of action ( see Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668; Carnazza v. Shoprite of Staten Is., 12 AD3d 393; Kopinska v. Metal Bright Maintenance Co., 309 AD2d 633; Rothstein v. State of New York, 284 AD2d 130, 131). Accordingly, the Supreme Court improvidently exercised its discretion in denying the motion.
The bank claims that it cannot be held liable to plaintiff because the contractor was responsible for cleaning up and it had no notice of any formica or other debris at or near the counter at the time of plaintiff's fall. It does not avail the bank that its contractor was responsible for cleaning up since an owner of premises open to the public cannot delegate to a contractor its duty to the public to keep its premises safe ( see Joyce v. Manhattan Coll., 1 A.D.3d 202, citing, inter alia, Kleeman v. Rheingold, 81 N.Y.2d 270, 273-274, and Backiel v. Citibank, 299 A.D.2d 504; see also Kopinska v. Metal Bright Maintenance Co., 309 A.D.2d 633). The bank fails to satisfy its initial burden of showing as a matter of law that it had no notice of the allegedly dangerous formica debris created by the contractor ( see Joyce, id.; Kucera v. Waldbaums Supermarkets, 304 A.D.2d 531, 532). While the bank's facilities manager states that he lacked personal knowledge of conditions around the counter at the time of the accident, in view of the fact that the work was being performed during regular banking hours in the presence of bank employees as well as customers, his statement that the bank never received any complaints about such conditions prior to the accident is insufficient to show lack of notice. The bank's assistant manager of operations, who was present on the premises at the time of the accident, could not recall whether she saw any debris around the counter on the day of the accident.
Thus, as the owner of the building, Jaks Realty had a "nondelegable duty to see that the maintenance of [its] building posed no hazard to those lawfully on the sidewalk." Kopinska v Metal Bright Maintenance Co., 309 AD2d 633, 633-634 (1st Dept 2003); see also Backiel v Citibank, N.A., 299 AD2d at 505 (citations omitted) ("Where, for example, premises are open to the public, the owner has a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress. This duty may not be delegated by the owner to its agents or employees or to an independent contractor").
For example, liability has been found in instances of a danger inherent in the work, and the property owner should have reasonably anticipated that the work would be dangerous to others ( see Thomassen v. J & K Diner, Inc., 152 A.D.2d 421, 424, 549 N.Y.S.2d 416 [2d Dept 1989], appeal dismissed76 N.Y.2d 771 [1990],reconsideration denied 76 N.Y.2d [1990]; see also Kopinska v. Metal Bright Maintenance Co., Inc., 309 A.D.2d 633, 634, 766 N.Y.S.2d 21 [1st Dept 2003] ).
Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663 (1992); Milligan v. Banco Popular, 6 A.D.3d 272 (1st Dept. 2004); Kopinska v. Metal Bright Maintenance Company, 309 A.D.2d 633 (1st Dept. 2003); Emmons v. City of New York, 283 A.D.2d 244 (1st Dept. 2001).
There is an exception to this broad rule where the work being performed was known by the owner to be "inherently dangerous." Kopinska v. MetalBright Maintenance Company, Inc., 309 A.D.2d 633, 634 (1st Dept 2003); see also Deljanin v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 12 Misc.3d 1158(A) (N.Y.Sup 2006) ( and cases cited therein). The condition that resulted in plaintiff's accident involved fencing left on the ground.
As a general matter, property owners have been held to a non-delegable duty to insure that maintenance of their building poses no hazard to persons lawfully on their property. Kopinska v. Metal Bright Maintenance Company Inc., 309 A.D. 2d 633 (1st Dept 2003). Discussion
This duty is an exception to the independent contractor doctrine. Kopinska v. Metal Bright Maintenance Co., 309 AD2d 633 (1st dept. 2003). Thus, summary judgment is not available to dismiss plaintiff's complaint against St. Nicholas.