        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1439
CA 12-01229
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


GARY STEIGER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LPCIMINELLI, INC. AND ORCHARD PARK CCRC,
DEFENDANTS-APPELLANTS.


HODGSON RUSS LLP, BUFFALO (PATRICK J. HINES OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

CAMPBELL & SHELTON LLP, EDEN (ERIC M. SHELTON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Sheila A.
DiTullio, A.J.), entered May 15, 2012. The order, inter alia, denied
the motion of defendants for summary judgment dismissing the second
amended complaint.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting those parts of defendants’ motion for summary
judgment dismissing the Labor Law § 200 and common-law negligence
claims against defendant LPCiminelli, Inc. insofar as they are based
upon actual notice and against defendant Orchard Park CCRC in their
entirety, and for summary judgment dismissing the Labor Law § 241 (6)
cause of action, and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he sustained when he
tripped and fell while exiting a portable toilet that was located on
land owned by defendant Orchard Park CCRC (Orchard Park). Orchard
Park hired defendant LPCiminelli, Inc. (Ciminelli) to act as the
general contractor or construction manager for the construction of Fox
Run at Orchard Park, a retirement community (Fox Run). Plaintiff was
employed as a service technician by a telephone company (employer),
which contracted directly with Orchard Park for the installation of
fiber optic telephone, Internet, and cable television systems at Fox
Run. On the date of the accident, plaintiff was working inside Fox
Run’s healthcare center building (hereafter, health center). After
finishing his work for the morning, plaintiff and a coworker planned
to drive to the nearby office of their employer for lunch. Plaintiff
and the coworker left the health center and walked into the parking
lot in front of the building, where their trucks were parked. Before
leaving for lunch, plaintiff decided to use one of the portable
toilets located on the sidewalk adjacent to the parking lot. The
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toilets were set back approximately 1½ to 2 feet from the sidewalk
curb. Plaintiff stepped onto the curb from the parking lot and
entered one of the toilets. When plaintiff exited the toilet, he took
a step with his right foot onto the sidewalk, rolled his left ankle on
the edge of the curb, and fell into the parking lot, breaking his
right wrist and injuring his left ankle.

     Defendants appeal from an order that, inter alia, denied their
motion for summary judgment dismissing the second amended complaint.
Contrary to the contention of defendants, we conclude that Supreme
Court properly denied that part of their motion for summary judgment
dismissing the Labor Law § 200 and common-law negligence claims
against Ciminelli except insofar as those claims are based upon actual
notice. Where, as here, the worker’s injuries result from a dangerous
condition at the work site rather than from the manner in which the
work is performed, the general contractor or owner “may be liable in
common-law negligence and under Labor Law § 200 if it has control over
the work site and [has created or has] actual or constructive notice
of the dangerous condition” (Ozimek v Holiday Val., Inc., 83 AD3d
1414, 1416 [internal quotation marks omitted]; see Bannister v
LPCiminelli, Inc., 93 AD3d 1294, 1295; Rodriguez v BCRE 230 Riverdale,
LLC, 91 AD3d 933, 934-935; Selak v Clover Mgt., Inc., 83 AD3d 1585,
1587; McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1582). Thus,
“[d]efendants, as the parties seeking summary judgment dismissing
those claims, were required to ‘establish as a matter of law that they
did not exercise any supervisory control over the general condition of
the premises or that they neither created nor had actual or
constructive notice of the dangerous condition on the premises’ ”
(Ozimek, 83 AD3d at 1416; see Keating v Nanuet Bd. of Educ., 40 AD3d
706, 708-709; Perry v City of Syracuse Indus. Dev. Agency, 283 AD2d
1017, 1017).

     We conclude that defendants failed to meet that burden with
respect to Ciminelli with the exception of actual notice. Defendants
failed to demonstrate that Ciminelli lacked any supervisory control
over the general condition of the premises inasmuch as their own
submissions established, inter alia, that Ciminelli’s project
superintendent and project manager had offices on the premises and
were present at the construction site on a daily basis, held
coordination meetings with field personnel, and required all
contractors and subcontractors to sign a safety form (see Mott v
Tromel Constr. Corp., 79 AD3d 829, 830-831). Defendants likewise
failed to establish that Ciminelli did not create the allegedly
dangerous condition, i.e., the placement of the portable toilets in
proximity to the curb. It is undisputed that Ciminelli was
responsible for the placement of the portable toilets, and Ciminelli
failed to demonstrate as a matter of law that the placement of the
portable toilets did not constitute a dangerous condition. Indeed,
the record establishes the potential danger created by that placement.
Photographs of the accident scene show that the toilets were located a
short distance from the curb. Further, plaintiff’s coworker confirmed
that, on the date of the accident, he “stumbled” on his way out of the
portable toilet, having forgotten that “there was an extra step
there.” After plaintiff’s accident, the portable toilets were
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                                                         CA 12-01229

relocated, and the coworker testified that he “didn’t have any more
problems stepping in and out of them.”

     Defendants also failed to establish that Ciminelli lacked
“constructive notice of the condition, i.e., they failed to establish
as a matter of law that the condition was not visible and apparent or
that it had not existed for a sufficient length of time before the
accident to permit [Ciminelli] or [its] employees to discover and
remedy it” (Finger v Cortese, 28 AD3d 1089, 1091; see generally Gordon
v American Museum of Natural History, 67 NY2d 836, 837-838). The
portable toilets had been located on the sidewalk for at least a week
prior to the accident, and Ciminelli representatives were present at
the work site on a daily basis. Moreover, the photographs in the
record establish that the potential danger created by the placement of
the portable toilets, i.e., their proximity to the sidewalk curb, is
readily apparent.

     We agree with defendants, however, that they met their burden of
establishing Ciminelli’s lack of actual notice as a matter of law
“[b]y showing that it did not receive any complaints about the area
prior to plaintiff’s fall” (Quinn v Holiday Health & Fitness Ctrs. of
N.Y., Inc., 15 AD3d 857, 857; see Ferrington v Dudkowski, 49 AD3d
1267, 1267) and that plaintiff failed to raise a triable issue of fact
with respect thereto (see Ferrington, 49 AD3d at 1267; see generally
Zuckerman v City of New York, 49 NY2d 557, 562). Ciminelli’s project
superintendent and project manager testified at their depositions that
they did not receive any complaints about the placement of the toilets
on the sidewalk and that they were not aware of any incidents
involving the toilets prior to the accident, and plaintiff submitted
no proof to the contrary (see Quigley v Burnette, 100 AD3d 1377, 1378;
Constanzo v Woman’s Christian Assn. of Jamestown, 92 AD3d 1256, 1257).
We therefore modify the order by granting that part of defendants’
motion for summary judgment dismissing the Labor Law § 200 and
common-law negligence claims against Ciminelli insofar as they are
premised upon actual notice.

     We further conclude that defendants met their burden with respect
to the Labor Law § 200 and common-law negligence claims against
Orchard Park. Specifically, defendants established that Orchard Park
“lacked control over the general condition of the premises and neither
created nor had actual or constructive notice of any allegedly
dangerous condition thereof, and . . . plaintiff failed to raise a
triable issue of fact” (Hennard v Boyce, 6 AD3d 1132, 1133). The
executive director of Fox Run testified at his deposition that Orchard
Park had no responsibility for directing or controlling the
construction work, and had no responsibility for site safety. Orchard
Park did not have a representative on the job site on a regular basis
and was not involved in acquiring or placing the portable toilets at
the site. We therefore further modify the order by granting those
parts of defendants’ motion for summary judgment dismissing the Labor
Law § 200 and common-law negligence claims against Orchard Park in
their entirety.

     Finally, we agree with defendants that the court erred in denying
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                                                        CA 12-01229

that part of their motion seeking summary judgment dismissing the
Labor Law § 241 (6) cause of action. That cause of action is premised
upon defendants’ alleged violation of 12 NYCRR 23-1.7 (e) (1), which
provides that “[a]ll passageways shall be kept free from accumulations
of dirt and debris and from any other obstructions or conditions which
could cause tripping.” Although that Industrial Code provision is
sufficiently specific to support a Labor Law § 241 (6) claim (see Boyd
v Mammoet W., Inc., 32 AD3d 1257, 1258; Cowan v ADF Constr. Corp., 26
AD3d 802, 803), we conclude that defendants met their burden of
establishing that it is inapplicable to the facts of this case and
that plaintiff failed to raise a triable issue of fact with respect
thereto (see Boyd, 32 AD3d at 1258; Fura v Adam’s Rib Ranch Corp., 15
AD3d 948, 948; Schroth v New York State Thruway Auth., 300 AD2d 1044,
1045). The area where the accident occurred was not a “passageway”
that defendants were obligated to keep free of obstructions or other
conditions that might cause tripping (see Lech v Castle Vil. Owners
Corp., 79 AD3d 819, 820; Hageman v Home Depot U.S.A., Inc., 45 AD3d
730, 731; Boyd, 32 AD3d at 1258; Meslin v New York Post, 30 AD3d 309,
310).

     Although the regulations do not define the term “passageway” (see
12 NYCRR 23-1.4), courts have interpreted the term to mean a defined
walkway or pathway used to traverse between discrete areas as opposed
to an open area (see Motyka v Ogden Martin Sys. of Onondaga Ltd.
Partnership, 272 AD2d 980, 981; Bale v Pyron Corp., 256 AD2d 1128,
1128; see also O’Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 225-
226, affd 7 NY3d 805; Rajkumar v Budd Contr. Corp., 77 AD3d 595, 595;
Verel v Ferguson Elec. Constr. Co., Inc., 41 AD3d 1154, 1157; Smith v
McClier Corp., 22 AD3d 369, 371; Fura, 15 AD3d at 948; Bauer v Niagara
Mohawk Power Corp., 249 AD2d 948, 949). Here, plaintiff tripped on
the curb of a sidewalk that bordered the parking lot and that ran
along the front of the health center where he was working on the date
of the accident. Plaintiff described the parking lot as a “big . . .
open parking lot” where he and other workers parked their vehicles to
access the health center. We have held that a parking lot is not a
passageway within the meaning of 12 NYCRR 23-1.7 (see Talbot v Jetview
Props., LLC, 51 AD3d 1396, 1397-1398; see also Bonvino v Long Is.
Coll. Hosp., 21 Misc 3d 1110[A], 2008 NY Slip Op 52034[U], *5-6; see
generally Garland v Zelasko Constr., 241 AD2d 953, 954).

     With respect to the sidewalk itself, plaintiff “was not using
[it] as a passageway when the accident occurred” (Parker v Ariel
Assoc. Corp., 19 AD3d 670, 672; see Salinas v Barney Skanska Constr.
Co., 2 AD3d 619, 622; cf. Hertel v Hueber-Breuer Constr. Co., Inc., 48
AD3d 1259, 1260). When plaintiff tripped, he was not using the
sidewalk at issue as a means of traveling between work areas or
between his work area and the parking lot where his vehicle was
parked. Indeed, plaintiff testified that, during the month that he
was working in the health center, he never walked on the sidewalk at
issue because “[t]he johns were on them.” Rather, plaintiff stepped
over the sidewalk into the parking lot, and thus the alleged
passageway itself was the “obstruction” (12 NYCRR 23-1.7 [e] [1]).
Had plaintiff been using the sidewalk as a passageway, he would not
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                                                         CA 12-01229

have encountered the same tripping hazard. The photographs and
deposition testimony in the record establish that the portable toilets
could be accessed from the sidewalk without having to navigate the
curb. We therefore further modify the order by granting that part of
defendants’ motion for summary judgment dismissing the Labor Law § 241
(6) cause of action (see generally Coaxum v Metcon Constr., Inc., 93
AD3d 403, 404; Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d
936, 938; Verel, 41 AD3d at 1157).

     All concur except WHALEN, J., who dissents in part and votes to
modify in the following Memorandum: Respectfully, I dissent with the
majority insofar as they conclude that Supreme Court erred in denying
that part of defendants’ motion for summary judgment dismissing the
Labor Law § 241 (6) cause of action. I would therefore affirm the
order insofar as it denied that part of the motion. Contrary to the
majority’s determination, I conclude that defendants’ submissions
raised a triable issue of fact whether plaintiff was using the
sidewalk as a passageway when the accident occurred. Thus, in my
view, defendants failed to meet their burden of demonstrating that 12
NYCRR 23-1.7 (e) (1) is inapplicable to the facts of this case.

     “12 NYCRR 23-1.7 (e) (1) does not exempt any construction site
‘passageway’ from its scope; it clearly requires that ‘[a]ll
passageways shall be kept free from . . . obstructions or conditions
which could cause tripping’ ” (Smith v McClier Corp., 22 AD3d 369,
370). Responsibility under Labor Law § 241 (6) “extends not only to
the point where the . . . work was actually being conducted, but to
the entire site” (id. at 371 [internal quotation marks omitted]).

     As noted by the majority, in this case plaintiff was exiting a
portable toilet when he tripped over the curb of a sidewalk on which
the toilets were located. The sidewalk bordered a parking lot and ran
along the front of the health center, in which plaintiff had been
working on the date of the accident. The portable toilets were placed
on the sidewalk for the workers to use and thus were part of the
entire work site.

     Further, the purpose of a sidewalk is to provide a surface upon
which a person may safely pass from one location to another. The
record establishes that a worker could not access the portable toilets
without stepping on the sidewalk. Thus, there is evidence that the
sidewalk was a passageway that provided workers access to the portable
toilets. Moreover, the record establishes that, when the door to a
portable toilet opened onto the sidewalk, it created a very narrow
area of the sidewalk upon which a person could step when exiting the
toilet. Defendants submitted the deposition testimony of the project
superintendent for defendant LPCiminelli, Inc. (Ciminelli), in which
he testified that plaintiff could have exited the toilet, turned
right, and walked down the sidewalk back to the work site. Instead,
plaintiff chose to walk straight into the parking lot and thus tripped
over the curb of the sidewalk at issue. The fact that Ciminelli’s own
employee testified that plaintiff could have walked on the sidewalk at
issue back to the work site is sufficient to create a triable issue of
fact whether that sidewalk was a passageway on which plaintiff was
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                                                         CA 12-01229

injured and thus whether 12 NYCRR 23-1.7 (e) (1) was violated.




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
