Rizzo v. HRH Construction Corp.

Jan 16, 2003
Versions:301 A.D.2d 426
752 N.Y.S.2d 875
2003 N.Y. App. Div. LEXIS 305

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered April 23, 2002, which, in an action by a laborer for personal injuries against *427the owner and general contractor of a construction site, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the plaintiffs causes of action under Labor Law §§ 200 and 241 (6), unanimously affirmed, without costs.

Plaintiff alleges that as he began to roll a wheelbarrow filled with debris up a ramp leading out of a basement, he tripped over a metal drainpipe protruding approximately three inches out of the poured concrete slab floor of the basement, sustaining injuries. Summary judgment dismissing plaintiffs section 241 (6) claim based on a violation of 12 NYCRR 23-1.7 (e) (2) was properly denied, the record being too sparse to permit findings that the drainpipe was a “sharp projection” within the meaning of that rule (cf. Lenard v 1251 Ams. Assoc., 241 AD2d 391, 393-394), and, if so, whether it was an integral part of a floor under construction (cf. Isold v JWP Forest Elec. Corp., 267 AD2d 157). Summary judgment dismissing plaintiffs section 200 claim was also properly denied, there being issues of fact as to whether defendants had supervisory control over the work that plaintiff was doing when injured, and, if so, whether the drainpipe was open and obvious (cf. Isold at 158). Concur— Tom, J.P., Mazzarelli, Buckley and Lerner, JJ.