Borner
v.
Fordham Univ.

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, First Department, New York.Jan 29, 2015
998 N.Y.S.2d 635 (N.Y. App. Div. 2015)
998 N.Y.S.2d 635124 A.D.3d 5532015 N.Y. Slip Op. 696

14076, 309359/08.

01-29-2015

Edward BORNER, Plaintiff–Respondent–Appellant, v. FORDHAM UNIVERSITY, et al., Defendants–Appellants–Respondents, Sasaki Architects, et al., Defendants.

Donovan Hatem LLP, New York (Scott K. Winikow of counsel), for appellants-respondents. O'Dwyer & Bernstien, LLP, New York (Beena Ahmad of counsel), for respondent-appellant.


Donovan Hatem LLP, New York (Scott K. Winikow of counsel), for appellants-respondents.

O'Dwyer & Bernstien, LLP, New York (Beena Ahmad of counsel), for respondent-appellant.

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered October 22, 2013, which to the extent appealed from as limited by the briefs, denied so much of defendants Fordham University (Fordham) and Mueser Rutledge Consulting Engineers' (MRCE) motion for summary judgment as sought dismissal of the common law negligence and Labor Law § 200 claims, and granted so much of defendants' motion as sought summary judgment dismissing the Labor Law § 241(6) claim insofar as it was based on a violation of Industrial Code § 23–1.7(d), unanimously affirmed, without costs.

The motion court properly denied that portion of defendants' motion seeking dismissal of plaintiff's Labor Law § 200 and common law negligence claims. There are questions of fact concerning whether Fordham, the property owner, had actual or constructive notice of the icy condition that allegedly caused plaintiff, a core driller employed by nonparty Aquifier Drilling & Testing, to slip and fall (see Urban v. No. 5 Times Square Dev., LLC, 62 A.D.3d 553, 556, 879 N.Y.S.2d 122 [1st Dept.2009] ). There are also questions of fact as to whether MRCE, a geotechnical engineering firm hired to assure compliance with construction plans and specifications, had control over plaintiff's work and the work site, precluding summary judgment (see id.; Davis v. Lenox School, 151 A.D.2d 230, 231, 541 N.Y.S.2d 814 [1st Dept.1989] ).

The motion court properly dismissed plaintiff's Labor Law § 241(6) claim insofar as it was predicated on a violation of Industrial Code 23–1.7(d). This regulation has no application to the instant facts since plaintiff fell in a parking lot, not “ ‘a floor, passageway, walkway, scaffold, platform or other elevated working surface,’ within the purview of 12 NYCRR 23–1.7(d) ” (Raffa v. City of New York, 100 A.D.3d 558, 559, 955 N.Y.S.2d 9 [1st Dept.2012] ).

GONZALEZ, P.J., FRIEDMAN, ANDRIAS, GISCHE, KAPNICK, JJ., concur.