Korostynskyy v. 416 Kings Highway, LLC

• Decision Date: 10 February 2016
• Citation: 136 A.D.3d 758,24 N.Y.S.3d 747
• Parties: Mykhaylo KOROSTYNSKYY, appellant, v. 416 KINGS HIGHWAY, LLC, et al., defendants, Leonid Goldin, respondent.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 758

24 N.Y.S.3d 747

Mykhaylo KOROSTYNSKYY, appellant,

v.416 KINGS HIGHWAY, LLC, et al., defendants,Leonid Goldin, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 10, 2016.

William Pager, Brooklyn, N.Y., for appellant.

Herzfeld & Rubin, P.C., New York, N.Y. (Miriam Skolnik, Lawton W. Squires, Nadine Kohane, and Sharyn Rootenberg of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated March 15, 2014, as granted that branch of the cross motion of the defendant Leonid Goldin which was for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the cross motion of the defendant Leonid Goldin which was for summary judgment dismissing the complaint insofar as asserted against him is denied.

While renovating an office in a building owned by the defendant Leonid Goldin (hereinafter the defendant), the plaintiff allegedly was injured when a worker and construction materials fell from scaffolding on a neighboring construction site, through a skylight in the defendant's roof, and onto him. The plaintiff commenced this action against the defendant and, among others, the owners of the adjacent construction site, alleging violations of Labor Law §§ 200, 240, and 241, and common-law negligence. Following certain discovery, the plaintiff moved pursuant to CPLR 3124 and 3126(1), inter alia, to strike the defendants' answers or preclude them from offering evidence based on their alleged failure to appear for depositions and/or produce a witness with knowledge of the relevant facts. The defendant opposed the plaintiff's motion and cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him. Without resolving the plaintiff's motion to strike, the Supreme Court granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against him. The plaintiff appeals, and we reverse.

The Supreme Court erred in granting those branches of the defendant's cross motion which were for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action insofar as asserted against him. Liability on common-law negligence and Labor Law § 200 causes of action "generally falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site" (Abelleira v. City of New York, 120 A.D.3d 1163, 1164, 992 N.Y.S.2d 324 ). Where, as alleged here, the plaintiff's accident arose from an allegedly dangerous premises condition, a property owner may be held liable in common-law negligence and under Labor Law § 200 when the owner has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it (see id. at 1164, 992 N.Y.S.2d 324 ). Thus, where a plaintiff's injury arose from a dangerous condition at a work site, a property owner moving for summary judgment dismissing a cause of action alleging common-law negligence has "the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence" (Ventimiglia v. Thatch, Ripley & Co. LLC, 96 A.D.3d 1043, 1046, 947 N.Y.S.2d 566 ; see Nicoletti v. Iracane, 122 A.D.3d 811, 812, 996 N.Y.S.2d 697 ). Here, the defendant failed to establish, prima facie, that he did not create or have actual or constructive notice of the allegedly dangerous condition. Despite the defendant's...