Penotti v. Xinos Construction Corp. ( 2016 )

Penotti v Xinos Constr. Corp. (2016 NY Slip Op 03975)

Penotti v Xinos Constr. Corp.

2016 NY Slip Op 03975

Decided on May 19, 2016

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 May 19, 2016
Tom, J.P., Saxe, Richter, Gische, Webber, JJ.

1203 107133/11

[*1]Robert J. Penotti, Plaintiff-Appellant,

v

Xinos Construction Corp., Defendant-Respondent.

Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph of counsel), for appellant.

Babchik & Young, LLP, White Plains (Jordan Sklar of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered February 20, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Summary judgment was improperly granted in this action where plaintiff was injured when he walked into a pipe of a sidewalk shed erected outside of the store he was planning to enter. The record presents triable issues regarding whether the sidewalk shed pipe was an open, obvious, and not inherently dangerous condition (see Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69 [1st Dept 2004]). At the time, plaintiff was following one of defendant's employees, who tried to guide him through the work site. Plaintiff testified that he did not keep his eyes forward at all times as he walked through the site because he was concerned about tripping over construction debris, tools, and supplies that were strewn on the ground. Based on the alleged condition of the work site at the time leading up to the accident, and viewed in the light most favorable to plaintiff, there are questions of fact as to whether plaintiff's attention was distracted by the debris left by defendant on the ground at the work site, a potentially unsafe and dangerous condition, thereby causing plaintiff to collide with the pipe (see Saretsky v 85 Kenmare Realty Corp., 85 AD3d 89, 92 [1st Dept 2011]; Clark v AMF Bowling Ctrs., Inc., 83 AD3d 761, 762 [2d Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 19, 2016

CLERK