Mazzella v. Bronze Plumbing & Heating Corp.

194 A.D.2d 327, 598 N.Y.S.2d 230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 1993
• Status: Published

Opinion

—Order of the Supreme Court, Bronx County (Anita Florio, J.), entered July 21, 1992, which denied defendant’s motion for summary judgment dismissing the complaint pursuant to CPLR 3212 without prejudice to renewal after discovery is completed, unanimously affirmed, without costs.

Plaintiff Mario Mazzella was injured in the course of his employment with third-party defendant Marciano General Contracting. He sustained fractures of the right leg, ankle and foot in a fall while working in the basement of a single-family home clearing up debris. It is alleged that defendant Bronze Plumbing & Heating Corporation permitted the basement to become littered with pipes, rendering the area unsafe.

We note that plaintiff, who testified at his pre-trial deposition through an Italian interpreter, stated that he did not see the object he fell on prior to the accident and that he was in such intense pain that he did not recall events immediately after the accident while being removed from the basement by an ambulance company. He did, however, allege the presence of black pipes in the area which, if established would raise an issue with respect to whether this condition caused his injury (see, Farrar v Teicholz, 173 AD2d 674, 676; see also, Rodriguez v Parkchester S. Condominium, 178 AD2d 231). In view of the conditions testified to by the injured plaintiff, from his limited ability to observe the area, and considering the stage of the proceedings, we agree with Supreme Court that summary judgment should await the completion of discovery. Concur— Sullivan, J. P., Carro, Ellerin and Rubin, JJ.