Ingrati v Avalonbay Communities, Inc.

Ingrati v Avalonbay Communities, Inc. 2021 NY Slip Op 06921 Decided on December 09, 2021 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 and Entered: December 09, 2021
Before: Kapnick, J.P., Moulton, González, Rodriguez, Pitt, JJ.
Index No. 150134/15 Appeal No. 14809 Case No. 2021-02320

[*1]Michael Ingrati et al., Plaintiffs-Appellants,

v

Avalonbay Communities, Inc., Defendant-Respondent.

Pollack, Pollack, Isaac & DeCicco LLP, New York (Jillian Rosen of counsel), for appellants.

Harrington, Ocko & Monk, LLP, White Plains (Matthew R. Bremner of counsel), for respondent.

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered June 23, 2021, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment on liability as to their claims under Labor Law §§ 241(6) and 200, as well as common-law negligence, and granted defendant's cross motion for summary judgment dismissing the Labor Law § 241(6) claim, unanimously modified, on the law, to reinstate the Labor Law § 241(6) claim insofar as predicated on Industrial Code § 23-1.7(e)(2), and otherwise affirmed, without costs.

Plaintiffs' evidence in support of summary judgment on liability on their Labor Law § 241(6) claim established prima facie entitlement to relief, since photographs and deposition testimony established broken concrete and brick, as well as lighter-colored dried concrete pieces in the same area on the sidewalk where the injured plaintiff slipped or tripped. Furthermore, the sidewalk area outside the front of the building under construction was shown to be a "working area" where cement trucks parked to deliver cement for the foundation and the upper floors of the building (see Lester v JD Carlisle Dev. Corp., MD., 156 AD3d 577, 578 [1st Dept 2017]; Lenard v 1251 Ams. Assoc., 241 AD2d 391 [1st Dept 1997]). In opposition to plaintiffs' motion, as well as in support of its own cross motion, defendant's evidence raised triable issues as to whether the sidewalk condition on which plaintiff tripped or slipped was inherently dangerous. The same triable issues preclude a grant of partial summary judgment to plaintiffs on their claims under Labor Law § 200 and common-law negligence.

We have considered the parties' remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 9, 2021