Summary
In Sergio v. Benjolo N.V. (168 AD2d 235, 236 [1st Dept 1990]), the plaintiff was injured when stacked cartons fell beneath the wheels of his tool box, causing it to come to a sudden stop and throw him to the ground.
Summary of this case from Humala v. City of New YorkOpinion
December 6, 1990
Appeal from the Supreme Court, New York County (David B. Saxe, J.).
Plaintiff, an employee of a contractor constructing a new elevator in 412 Fifth Avenue, was allegedly injured in the basement of the building when stacked cartons fell beneath the wheels of his tool box, causing it to come to a sudden stop and throw plaintiff to the ground. The building is owned by defendant Benjolo, and was leased at the time of the accident to defendant Job Lot Trading Co., Inc. under an instrument which obligated the tenant to repair and maintain the premises. The IAS court denied Benjolo's motion to dismiss on the ground that the out-of-possession landlord retained responsibility for the safe maintenance of the premises under Administrative Code of the City of New York § 27-128 and its right under the lease to reenter the premises to make repairs.
We need not pass upon the rationale employed by Supreme Court in denying the motion as it is clear to us plaintiff has a viable cause of action under Labor Law § 241 (6) and Industrial Code (12 NYCRR) rule 23-1.7 (e). Neither the owner's lack of control over the work nor over the premises vitiates this statutory responsibility (Sperber v. Penn Cent. Corp., 150 A.D.2d 356). This responsibility extends not only to the point where the elevator work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work (Nagel v. Metzger, 103 A.D.2d 1). Plaintiff adequately raised this point on the motion by invoking the concept of a safe place to work, and in any event, the issue arises both from the face of his affidavit in opposition to the motion and deposition testimony in the record (Matter of Knickerbocker Field Club v. Site Selection Bd., 41 A.D.2d 539).
Concur — Murphy, P.J., Ross, Ellerin and Smith, JJ.