Fuentes v. Lindsay Park Hous. Corp.

Fuentes v Lindsay Park Hous. Corp. (2022 NY Slip Op 01513) Fuentes v Lindsay Park Hous. Corp. 2022 NY Slip Op 01513 Decided on March 10, 2022 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 and Entered: March 10, 2022 Before: Manzanet-Daniels, J.P., Mazzarelli, González, Shulman, Rodriguez, JJ. Index No. 300141/17E Appeal No. 15482 Case No. 2021-00741 [*1]Felix Fuentes, Plaintiff-Respondent, v Lindsay Park Hous. Corp., Defendant-Appellant. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant. Berson & Budashewitz, LLP, New York (Jeffrey A. Berson of counsel), and Wingate, Russotti, Shapiro & Halperin, LLP, New York, for respondent. Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered February 23, 2021, which, to the extent appealed from, upon reargument, denied defendant's motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 241(6) claims, unanimously affirmed, without costs. With respect to the Labor Law § 241(6) claim, the motion court correctly determined that plaintiff was performing his painting and plastering work in a vacant apartment in a construction context (see 12 NYCRR 23-1.4[b][13]; Aarons v 401 Hotel, L.P., 12 AD3d 293 [1st Dept 2004]) and that an issue of fact existed as to whether his slipping on and/or tripping over a thin plastic covering placed over newly installed flooring, which became entangled in his feet, constituted a tripping hazard as defined in Industrial Code (12 NYCRR) § 23-1.7(e). With respect to the Labor Law § 200 and common-law negligence claims, issues of fact exist regarding whether defendant's employees created or had actual or constructive notice of the condition at issue (see generally Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 10, 2022