Velez v. City of New York

Velez v City of New York (2015 NY Slip Op 08933)

Velez v City of New York

2015 NY Slip Op 08933

Decided on December 3, 2015

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 December 3, 2015
Friedman, J.P., Renwick, Saxe, Kapnick, JJ.

16301 402672/12

[*1] Gregory Velez, Plaintiff-Respondent, ——

v

City of New York, et al., Defendants-Appellants.

Cerussi & Spring, P.C., White Plains (Christa D'Angelica of counsel), for appellants.

Rosenberg, Minc, Falkoff & Wolff, LLP, New York (Steven C. Falkoff of counsel), for respondent.

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 23-130, 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 23-130). 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.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2015

CLERK