Opinion
9140 Index 160467/15 595164/16 595516/16
04-30-2019
Robert ROSSI, Plaintiff–Respondent, v. 140 WEST JV MANAGER LLC, et al., Defendants–Appellants, J.T. Magen & Company Inc., Defendant–Respondent. 140 West JV Manager LLC, et al., Third Party Plaintiff, v. H & L Electric, Inc., Third Party Defendant. [And Another Third–Party Action]
O'Connor Redd Orlando LLP, Port Chester (Marie R. Hodukavich of counsel), for 140 West JV Manager LLC, appellant. Furman, Kornfeld & Brennan LLP, New York (Peter C. Lucas of counsel), for Vanquish Contracting Corp., appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Robert Rossi, respondent. Fabiani Cohen Hall, LLP, New York (Allison Snyder of counsel), for J.T. Magen & Company Inc., respondent.
O'Connor Redd Orlando LLP, Port Chester (Marie R. Hodukavich of counsel), for 140 West JV Manager LLC, appellant.
Furman, Kornfeld & Brennan LLP, New York (Peter C. Lucas of counsel), for Vanquish Contracting Corp., appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Robert Rossi, respondent.
Fabiani Cohen Hall, LLP, New York (Allison Snyder of counsel), for J.T. Magen & Company Inc., respondent.
Renwick, J.P., Richter, Gesmer, Kern, Singh, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about January 31, 2018, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability as to Labor Law § 241(6) predicated on violations of Industrial Code ( 12 NYCRR) §§ 23–1.7(e)(1) and (2) as against defendants 140 West Street (N.Y.), LLC, and Vanquish Contracting Corp. (Vanquish), unanimously affirmed, without costs.
Summary judgment on the issue of liability was properly granted in this action where plaintiff was injured when he tripped and fell over construction debris at the work site. The area where plaintiff fell was, by definition, a passageway, as he tripped over Vanquish's demolition debris along the only route he could take to return to his work area with a ladder (see Lois v. Flintlock Constr. Servs., LLC, 137 A.D.3d 446, 447, 27 N.Y.S.3d 120 [1st Dept. 2016] ; see also Harasim v. Eljin Constr. of N.Y., Inc., 106 A.D.3d 642, 643, 966 N.Y.S.2d 387 [1st Dept. 2013] ; 12 NYCRR 23–1.7 [e][1] ). Moreover, Vanquish left demolition debris on a floor where plaintiff was required to pass in the course of his work within the definition of a working area (see Canning v. Barneys N.Y., 289 A.D.2d 32, 34, 734 N.Y.S.2d 116 [1st Dept. 2001] ; 12 NYCRR 23–1.7 [e][2] ). The debris, consisting of cables from elevator shaft demolition, was not inherent in, or an integral part of, the work being performed by either plaintiff electrician or Vanquish at the time of the accident (see Pereira v. New Sch., 148 A.D.3d 410, 412, 48 N.Y.S.3d 391 [1st Dept. 2017] ), but rather constituted an accumulation of debris from which Vanquish was required to keep work areas free (see Lester v. JD Carlisle Dev. Corp., MD., 156 A.D.3d 577, 68 N.Y.S.3d 60 [1st Dept. 2017] ).We decline to search the record to grant any party summary judgment on the Labor Law § 200 and common-law negligence claims.