Bell v Kandler

Bell v Kandler 2013 NY Slip Op 00994 Decided on February 14, 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 February 14, 2013
Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam, Feinman, JJ.
9234 120453/03 590995/04

[*1]Raymond Bell, Plaintiff-Appellant,

v

Charles Kandler, et al., Defendants-Respondents. [And Third-Party Actions]




Eric H. Green, New York (Marc Gertler of counsel), for
appellant.
Devereaux, Baumgarten, New York (Michael J. Devereaux of
counsel), for respondents.

Order, Supreme Court, New York County (Carol Edmead, J.), entered September 16, 2010, which, to the extent appealed from, granted so much of defendants' cross motion for summary judgment as sought dismissal of plaintiff's Labor Law § 202 cause of action, unanimously reversed, on the law, without costs, and the motion denied.

In this action to recover damages arising from plaintiff's fall while washing exterior windows of a commercial building, triable issues of fact exist as to whether (1) defendant building owner required tenants and subtenants to clean the windows on their leased premises (see Labor Law § 202); (2) the owner, by lack of objection, either informally approved or permitted window washing by its tenants' and subtenants' hired workers, including plaintiff, who testified that he washed windows in the building on almost a monthly basis since the late 1980's; (3) the owner informally approved of, if not directly recognized, third-party defendant Baltz's subtenancy, such that the lease terms at issue would then be binding upon Baltz; (4) the owner had installed and provided notice of tilt-in windows in Baltz's subleased premises before plaintiff's accident, such that a safe means was provided for washing the windows from inside [*2]the building, rather than from the exterior (see id.); and (5) the anchor hooks on the building's facade complied with the relevant Industrial Code provisions (see 12 NYCRR 21.3[b], [d], [h], [i]; 21.6[a], [c], [k]).

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

ENTERED: FEBRUARY 14, 2013

CLERK