Hernandez v. Columbus Centre, LLC

• Decision Date: 29 April 2008
• Docket Number: 3519.
• Citation: 2008 NY Slip Op 03976,50 A.D.3d 597,857 N.Y.S.2d 83
• Parties: ROBERT HERNANDEZ, Respondent-Appellant, v. COLUMBUS CENTRE, LLC, et al., Appellants-Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 597 857 N.Y.S.2d 83 2008 NY Slip Op 03976 ROBERT HERNANDEZ, Respondent-Appellant,
v.
COLUMBUS CENTRE, LLC, et al., Appellants-Respondents. (And a Third-Party Action.) 3519. Appellate Division of the Supreme Court of the State of New York, First Department. Decided April 29, 2008.

Judgment, Supreme Court, New York County (John F. O'Donnell, J., and a jury), entered December 22, 2006, awarding plaintiff, inter alia, $15,300 and $127,500 for past and future pain and suffering, respectively, on a finding that defendants were liable for plaintiff's injuries under Labor Law §§ 200 and 241 (6), unanimously modified, on the law, to vacate all findings

[50 A.D.3d 598]

of liability except the finding against defendant Bovis Lend Lease LMB under Labor Law § 200, and, on the facts, to vacate the award for past pain and suffering, and a new trial directed on the Labor Law § 241 (6) claim against defendant Columbus Centre, and a new trial directed on the damage issue, unless, in the event plaintiff prevails at the new trial on liability, both defendants stipulate, or, in the event Columbus Centre prevails at the new trial, Bovis stipulates, within 24 hours after return of the verdict, without prejudice to post-trial motions, to increase the award for past pain and suffering to $100,000, and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs.

The Labor Law § 200 claim against Bovis, the construction manager, was properly before the jury, since there was evidence that the injury arose "from the condition of the work place created by or known to the contractor, rather than the method of plaintiff's work" (Murphy v Columbia Univ., 4 AD3d 200, 202 [2004]). However, no such evidence existed as to defendant Columbus Centre, the owner, and the Labor Law § 200 claim should have been dismissed as against it.

The Labor Law § 241 (6) claim was properly before the jury to the extent it was based on Industrial Code (12 NYCRR) § 23-1.30. Plaintiff's testimony, confirmed by his supervisor, that lighting conditions were poor, consisting only of a street light 150 to 200 feet away, created a triable issue of fact as to adequate lighting (see Murphy v Columbia Univ., 4 AD3d at 202). The remaining three Code provisions submitted to the jury as predicates for liability were not supported by sufficient evidence. As to Industrial Code (12 NYCRR) § 23-1.7 (b) (1), plaintiff did not fall from a height of 15 feet (see...