Summary
In Velasquez v. 795 Columbus LLC, 103 A.D.3d 541, 959 N.Y.S.2d 491 (1st Dep't 2013), plaintiff slipped on a muddy condition that the court held was an applicable predicate for the Labor Law § 241(6) claim.
Summary of this case from Milligan v. 606 W. 57, LLCOpinion
2013-02-21
Carlos VELASQUEZ, Plaintiff–Respondent, v. 795 COLUMBUS LLC, et al., Defendants–Appellants.
McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for appellants. Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), for respondent.
McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for appellants. Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), for respondent.
ANDRIAS, J.P., SAXE, DeGRASSE, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered December 16, 2011, which granted plaintiff's motion for partial summary judgment on his Labor Law § 241(6) claim and on his Labor Law § 200 claim to the extent it is asserted against defendant Tishman Construction, and denied defendants' cross motion for summary judgment dismissing the Labor Law § 200 claim and the claim for lost wages, unanimously affirmed, without costs.
Plaintiff alleges that he was injured when he slipped and fell on “mud, rocks and water” at a construction site that, at the time, consisted of an open excavation. He claims that a muddy condition had formed on the concrete floor at the bottom of the site due to water from rain and a nearby water main break that occurred a few days before the accident.
Although 12 NYCRR 23–1.7(e), which protects workers from tripping hazards, is inapplicable to the facts of this case, we find that 12 NYCRR 23–1.7(d), which protects workers against slipping hazards, is an applicable predicate for the Labor Law § 241(6) claim ( see e.g. Raffa v. City of New York, 100 A.D.3d 558, 559, 955 N.Y.S.2d 9 [1st Dept. 2012];Carty v. Port Auth. of N.Y. & N.J., 32 A.D.3d 732, 733, 821 N.Y.S.2d 178 [1st Dept. 2006], lv. denied8 N.Y.3d 814, 839 N.Y.S.2d 453, 870 N.E.2d 694 [2007];Militello v. 45 W. 36th St. Realty Corp., 15 A.D.3d 158, 159–160, 789 N.Y.S.2d 23 [1st Dept. 2005];Greenfield v. New York Tel. Co., 260 A.D.2d 303, 304, 689 N.Y.S.2d 72 [1st Dept. 1999], lv. denied94 N.Y.2d 755, 701 N.Y.S.2d 711, 723 N.E.2d 566 [1999] ). Plaintiff did not raise the applicability of 12 NYCRR 23–1.7(d) in his summary judgment motion (although he asserted it in his complaint and verified bill of particulars), but we reach the issue because it is a legal issue that is apparent on the record, and the determination could not have been avoided if the issue had been brought to defendants' attention on the motion ( see Rajkumar v. Budd Contr. Corp., 77 A.D.3d 595, 909 N.Y.S.2d 453 [1st Dept. 2010], citing Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209, 641 N.Y.S.2d 252 [1st Dept. 1996], lv. denied88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ).
Plaintiff was working on a “floor” within the meaning of 12 NYCRR 23–1.7(d) ( see Temes v. Columbus Ctr. LLC, 48 A.D.3d 281, 851 N.Y.S.2d 188 [1st Dept. 2008] ); the floor became covered with mud and water due to a water main break and rain. As the mud was not part of the floor and not an integral part of plaintiff's work, it constituted a “foreign substance” that caused slippery footing ( see Conklin v. Triborough Bridge & Tunnel Auth., 49 A.D.3d 320, 855 N.Y.S.2d 54 [1st Dept. 2008];Cottone v. Dormitory Auth. of State of N.Y., 225 A.D.2d 1032, 639 N.Y.S.2d 631 [4th Dept. 1996] ). Further, plaintiff's testimony that his foreman instructed him to work on the day of the accident, despite the presence of a muddy and wet condition, established negligence for which defendants may be held vicariously liable ( see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 350, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] ), and defendants failed to raise a triable issue of fact in opposition. The deposition testimony of Tishman Construction's general superintendent that there was no hazardous slippery condition is conclusory. Nor did defendants submit any evidence that plaintiff was contributorily negligent ( see id.;Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 502 n. 4, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ).
As to the Labor Law § 200 claim, defendants failed, as discussed, to rebut plaintiff's prima facie showing of a hazardous condition, and the evidence shows that Tishman-but not 795 Columbus—had notice of the water main break and the muddy condition ( see Hernandez v. Columbus Ctr., LLC, 50 A.D.3d 597, 598, 857 N.Y.S.2d 84 [1st Dept. 2008];Roppolo v. Mitsubishi Motor Sales of Am., 278 A.D.2d 149, 150, 718 N.Y.S.2d 322 [1st Dept. 2000] ).
The motion court correctly held that plaintiff's lost wages claim is an issue of damages to be addressed at trial.