Cumberland v Hines Interests Ltd. Partnership

Cumberland v Hines Interests Ltd. Partnership 2013 NY Slip Op 02342 Decided on April 9, 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 April 9, 2013
Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, JJ.
8737 105631/09

[*1]John Cumberland, Plaintiff-Appellant,

v

Hines Interests Limited Partnership, et al., Defendants-Respondents. [And a Third-Party Action]




Sacks and Sacks, LLP, New York (Scott N. Singer of counsel),
for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Harry
Steinberg of counsel), for respondents.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 29, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241(6) claim, unanimously modified, on the law, the motion denied with respect to the claim based on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(e)(1), and otherwise affirmed, without costs.

Contrary to the motion court's conclusion, plaintiff's deposition testimony raised an issue of fact as to whether he
fell in a "passageway" or an open work area (Costabile v Damon G. Douglas Co., 66 AD3d 436 [1st Dept 2009]; compare O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 225-226 [1st Dept 2006], affd 7 NY3d 805 [2006]).

We agree with the motion court that Industrial Code (12 NYCRR) § 23-1.7(e)(2) does not apply because the pipe and pipe fittings over which plaintiff fell were not "debris," but rather were "consistent with" the work being performed in the room Burkoski v Structure Tone, Inc., [*2]40 AD3d 378, 383 [1st Dept 2007]; Kinirons v Teachers Ins. & Annuity Assn. of Am., 34 AD3d 237, 238 [1st Dept 2006]).

We have considered plaintiff's remaining arguments and find them unavailing.

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

ENTERED: APRIL 9, 2013

CLERK