Avila v. Rahman NY Inc.

• Decision Date: 24 August 2000
• Parties: YUL AVILA, Appellant,<BR>v.<BR>RAHMAN NY INC., Respondent, et al., Defendant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

275 A.D.2d 271

713 N.Y.S.2d 17

YUL AVILA, Appellant,

v.RAHMAN NY INC., Respondent, et al., Defendant. (And a Third-Party Action.)

Decided August 24, 2000.

Concur — Williams, J.P., Tom and Rubin, JJ.

Plaintiff alleges that he sustained his injuries when, after a summer storm, in the course of his routine practice of inspecting the roof of defendant's building, he bent down to remove some debris covering the outside of and clogging the roof's uncovered drain pipe, whereupon water on the roof started to rush into the drain, sucking plaintiff's arm in almost up to the shoulder and pulling him flat to the ground. Such allegations show that plaintiff was not engaged in construction work when he sustained his injuries, and that he therefore does not have a cause of action under Labor Law § 241 (6) (see, Lynch v Abax, Inc., 268 AD2d 366). Nor does plaintiff have a cause of action in common-law negligence based on defendant's failure to have a grate in place covering the drain. Plaintiff makes no claim that defendant actually knew that the drain was missing its cover, or that the cover had been missing for a long enough period of time to give defendant constructive notice of its absence. Plaintiff does claim constructive notice by reason of the absent drain cover constituting a violation of the New York City Building Code (citing Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559), but Guzman does not avail plaintiff because the missing drain cover was not a significant structural or design defect (see, Quinones v 27 Third City King Rest., 198 AD2d 23), and also because the Building Code section invoked (Administrative Code of City of NY, tit 27, Appendix, Reference Standard RS 16, P110.9) is concerned with the prevention of clogged drains and the disposal of storm water, not with the prevention of persons being sucked into an uncovered drain (cf., Velazquez v Tyler Graphics, 214 AD2d 489, 490-491).

However, plaintiff does have a cause of action insofar as he claims that defendant was negligent in permitting debris to accumulate dangerously on the roof. An issue of fact as to whether defendant had notice of such danger is raised by the deposition testimony of its manager that he was aware of debris on the roof and had complained to the contractor whose workers he believed were responsible. On the issue of causation, defendant's expert's affidavit lacks foundational facts, e.g., an explanation of the "physics of fluid flow" relied on, necessary to support his conclusion that...