Garcia v 245 10th Ave., LLC

[*1] Garcia v 245 10th Ave., LLC 2013 NY Slip Op 51043(U) Decided on July 2, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 2, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr. J.P., Torres, Shulman, JJ
570105/13.

Daniel Garcia, Plaintiff-Respondent,

against

245 10th Avenue, LLC., Defendant-Appellant, -and- J. Petrocelli Contracting, Inc., Defendant.

Defendant 245 10th Avenue, LLC, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered August 15, 2012, which denied its motion for summary judgment dismissing plaintiff's common-law negligence and Labor Law §§ 200 and 241(6) causes of action.

Per Curiam.

Order (Andrea Masley, J.), entered August 15, 2012, modified to grant defendant-appellant's motion for summary judgment dismissing plaintiff's Labor Law § 241(6) claim; as modified, order affirmed, without costs.

Plaintiff's common-law negligence and Labor Law § 200 claims are not ripe for summary dismissal. Defendant-appellant failed to offer sufficient proof as to whether and when it inspected the area where plaintiff slipped and fell or that the icy condition complained of could not have been discovered upon a reasonable inspection (see White v Village of Port Chester, 92 AD3d 872 [2012]; Bannister v LP Ciminelli, Inc., 93 AD3d 1294 [2012]).

A different result obtains with respect to plaintiff's Labor Law § 241(6) claim. The lone Industrial Code provision relied upon by plaintiff, 12 NYCRR 23-1.7(d), is inapplicable to the alleged facts, where the accident occurred in what plaintiff himself described at deposition as a "pretty big ... open ... courtyard area," and not a "passageway" or "walkway" (see Ghany v BC Tile Contractors, Inc., 95 AD3d 768 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: July 02, 2013