Opinion
December 12, 1995
Appeal from the Supreme Court, Bronx County (Alan Saks, J.).
Plaintiff's decedent was critically injured when the wheels of a jack supporting a 6,000 pound fan chamber control box became caught in a depression in the concrete floor of defendant's warehouse, and the box fell on him. The IAS Court was correct in concluding that factual issues were presented as to whether defendant acted reasonably to maintain safe conditions in its premises, considering the likelihood of injury and the burden of avoiding the risk ( Basso v Miller, 40 N.Y.2d 233, 241). That decedent saw the depression before the accident does not warrant granting summary judgment to defendant, because decedent's negligence, if any, would not bar recovery, but would merely diminish the damages otherwise recoverable in proportion to defendant's culpable conduct (CPLR 1411). The same would be true under Labor Law § 200.
Defendant did not demonstrate that decedent was unconscious from the time of the accident until his death two days later; therefore the IAS Court's denial of summary judgment to defendant with respect to conscious pain and suffering was proper ( Cadieux v D.B. Interiors, 214 A.D.2d 323). Whether the length of decedent's pre-impact fear was sufficient to warrant an award for pain and suffering also must await trial ( see, Shu-Tao Lin v McDonnell Douglas Corp., 742 F.2d 45, 53).
Concur — Ellerin, J.P., Rubin, Nardelli, Williams and Mazzarelli, JJ.