SPORTIELLO v. CITY OF NEW YORK

Citation Codes

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Docket Number

2003-03097.

Attorney(S)

Isaacson, Schiowitz, Korson Solny, New York, N.Y. (Martin Schiowitz of counsel), for appellants. Epstein, Grammatico, Gann, Frankini Marotta, Woodbury, N.Y. (Dennis S. Heffernan of counsel), fbor defendants-respondents City of New York and New York City Board of Education. Williamson Williamson, P.C., New York, N.Y. (Gary H. Forman of counsel), for defendant third-party plaintiff-respondent. Baxter Smith, P.C., Jericho, N.Y. (Anne Marie Ladia of counsel), for third-party defendant-respondent.

Judges

William F. Mastro
Reinaldo E. Rivera

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PETER SPORTIELLO, ET AL., appellants, v. CITY OF NEW YORK, ET AL., defendants-respondents, FOUNDATION CONSTRUCTION CONSULTANTS, defendant third-party plaintiff-respondent, ET AL., defendants; WEST CONSTRUCTION CORPORATION, third-party defendant-respondent (and other third-party actions).

DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion and the cross motions which were for summary judgment dismissing the causes of action to recover damages under Labor Law § 200 and for common-law negligence are denied as premature, with leave to renew at the conclusion of discovery, and those causes of action are reinstated.

Contrary to the respondents' contention, the fact that the dangerous condition on which the plaintiff Peter Sportiello (hereinafter the plaintiff) allegedly slipped might have been open and obvious did not negate their duty to maintain the worksite in a reasonably safe condition, but rather, may raise an issue of fact concerning the plaintiff's comparative negligence ( see Cupo v. Karfunkel, 1 A.D.3d 48; Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923; Acevedo v. Camac, 293 A.D.2d 430, 431).

Since the respondents have not yet produced any witnesses for depositions, it was premature to grant summary judgment at this stage of the proceedings ( see CPLR 3212[f]; Destin v. New York City Tr. Auth., 303 A.D.2d 713; Rajan v. Insler, 300 A.D.2d 463).

FLORIO, J.P., SCHMIDT, MASTRO and RIVERA, JJ., concur.

PETER SPORTIELLO, ET AL., appellants, v. CITY OF NEW YORK, ET AL., defendants-respondents, FOUNDATION CONSTRUCTION CONSULTANTS, defendant third-party plaintiff-respondent, ET AL., defendants; WEST CONSTRUCTION CORPORATION, third-party defendant-respondent (and other third-party actions).

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