Cerverizzo v City of New York

Cerverizzo v City of New York 2013 NY Slip Op 07694 Decided on November 19, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 19, 2013
Andrias, J.P., Friedman, Richter, Manzanet-Daniels, Feinman, JJ.
11128 15301/05 84731/05 85895/07 84224/08

[*1]Joseph Cerverizzo, et al., Plaintiffs-Appellants, The

v

City of New York, et al., Defendants-Respondents. The City of New York, et al., Third-Party Plaintiffs-Respondents, J. Blanco Associates, Inc., Third-Party Defendant-Respondent, Delta Installations, Inc., Third-Party Defendant. [And Other Third-Party Actions]




Sacks and Sacks, LLP, New York (Scott N. Singer of counsel),
for appellants.
Cartafalsa, Slattery Turpin & Lenoff, Tarrytown (Christopher
J. Turpin of counsel), for respondents.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered July 13, 2012, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the Labor Law § 200 claim as against defendant Yonkers Construction Corp. and the Labor Law § 241(6) claim against all defendants, unanimously modified, on the law, to deny the motion as to the Labor Law § 200 claim, and otherwise affirmed, without costs.

Pursuant to Labor Law § 200, Yonkers failed to establish prima facie that it neither created nor had actual or constructive notice of the dangerous condition, allegedly created by an excavating company, that caused plaintiff Joseph Cerverizzo's injury. Yonkers's own workers performed excavation in the area and were responsible for providing protection from excavation holes. Yonkers's argument that it did not exercise supervisory control over plaintiff's work is inapposite, in light of the evidence that Yonkers created the dangerous condition (see Picchione v Sweet Constr. Corp., 60 AD3d 510, 512 [1st Dept 2009]).

As a predicate for the Labor Law § 241(6) claim, Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) (hazardous openings) is inapplicable, because the hole that plaintiff stepped into, as he described it, was not large enough for a person to fit through (see Messina v City of New York, [*2]300 AD2d 121, 123-124 [1st Dept 2002]). Sections 23-1.7(e)(1) and 23-1.7(d) (tripping hazards and slipping hazards) are inapplicable because plaintiff's only testimony that he both tripped and slipped is contained in his affidavits, which were tailored to avoid the consequences of his prior deposition testimony that he neither tripped nor slipped (see Perez v Bronx Park S. Assoc., 285 AD2d 402, 404 [1st Dept 2001], lv denied 97 NY2d 610 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 19, 2013

CLERK