Velez v. City of New York

Appellate Division of the Supreme Court of New York

Velez v. City of New York

134 A.D.3d 447, 21 N.Y.S.3d 216

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 3, 2015

Docket16301 402672/12

StatusPublished

Cited by3 cases

This text of 134 A.D.3d 447 (Velez v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Velez v. City of New York, 134 A.D.3d 447, 21 N.Y.S.3d 216 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, New York County (Donna M. Mills, J.), entered February 4, 2015, which, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims and the Labor Law § 241 (6) claim as predicated upon 12 NYCRR 23-1.30, unanimously affirmed, without costs.

The motion court properly declined to dismiss the Labor Law § 200 and common-law negligence claims in this action where plaintiff alleges that he was injured when he tripped over a drain cover on the roof of the worksite because of inadequate illumination. Although defendants argue that they cannot be held liable for any lack of illumination because they did not create that condition or have notice of it, defendant failed to demonstrate that they lacked constructive notice of the alleged condition by offering evidence as to the time that the area where plaintiff fell was last inspected (see Jahn v SH Entertainment, LLC, 117 AD3d 473 [1st Dept 2014]).

Dismissal of the Labor Law § 241 (6) claim was properly denied, since plaintiff’s testimony regarding the lighting conditions of the rear area of the roof raises a triable issue as to whether the work area was adequately illuminated (see Green v New York City Hous. Auth., 7 AD3d 287 [1st Dept 2004]; 12 NYCRR 23-1.30). Although defendants’ witnesses deny that there was inadequate lighting of the roof top in their affidavits, there is no evidence that any of them were present at the worksite on the evening of plaintiff’s accident. In any event, the conflicting versions of the lighting conditions merely raise issues of credibility that cannot be resolved on a motion for summary judgment (see e.g. Campos v 68 E. 86th St. Owners Corp., 117 AD3d 593, 594 [1st Dept 2014]).

We have considered defendants’ remaining contentions and find them unavailing. Concur — Friedman, J.R, Renwick, Saxe and Kapnick, JJ.

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Order, Supreme Court, New York County (Donna M. Mills, J.), entered February 4, 2015, which, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims and the Labor Law § 241 (6) claim as predicated upon 12 NYCRR 23-1.30, unanimously affirmed, without costs.

The motion court properly declined to dismiss the Labor Law § 200 and common-law negligence claims in this action where plaintiff alleges that he was injured when he tripped over a drain cover on the roof of the worksite because of inadequate illumination. Although defendants argue that they cannot be held liable for any lack of illumination because they did not create that condition or have notice of it, defendant failed to demonstrate that they lacked constructive notice of the alleged condition by offering evidence as to the time that the area where plaintiff fell was last inspected (see Jahn v SH Entertainment, LLC, 117 AD3d 473 [1st Dept 2014]).

Dismissal of the Labor Law § 241 (6) claim was properly denied, since plaintiff’s testimony regarding the lighting conditions of the rear area of the roof raises a triable issue as to whether the work area was adequately illuminated (see Green v New York City Hous. Auth., 7 AD3d 287 [1st Dept 2004]; 12 NYCRR 23-1.30). Although defendants’ witnesses deny that there was inadequate lighting of the roof top in their affidavits, there is no evidence that any of them were present at the worksite on the evening of plaintiff’s accident. In any event, the conflicting versions of the lighting conditions merely raise issues of credibility that cannot be resolved on a motion for summary judgment (see e.g. Campos v 68 E. 86th St. Owners Corp., 117 AD3d 593, 594 [1st Dept 2014]).

We have considered defendants’ remaining contentions and find them unavailing. Concur — Friedman, J.R, Renwick, Saxe and Kapnick, JJ.

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Bluebook (online)

134 A.D.3d 447, 21 N.Y.S.3d 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/velez-v-city-of-new-york-nyappdiv-2015.

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