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JOHN CUMBERLAND, plf-ap, v. HINES INTERESTS LIMITED PARTNERSHIP def-res

8737. JOHN CUMBERLAND, plf-ap, v. HINES INTERESTS LIMITED PARTNERSHIP def-res — [AND A THIRDPARTY ACTION] Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for ap — Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for res — Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 29, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff's Labor Law §241(6) claim, unanimously modified, on the law, the motion denied with respect to the claim based on an alleged violation of Industrial Code (12 NYCRR) §23-1.7(e)(1), and otherwise affirmed, without costs.

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8737. JOHN CUMBERLAND, plf-ap, v. HINES INTERESTS LIMITED PARTNERSHIP def-res — [AND A THIRDPARTY ACTION] Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for ap — Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for res — Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 29, 2011, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing plaintiff’s Labor Law §241(6) claim, unanimously modified, on the law, the motion denied with respect to the claim based on an alleged violation of Industrial Code (12 NYCRR) §23-1.7(e)(1), and otherwise affirmed, without costs.

Contrary to the motion court’s conclusion, plaintiff’s deposition testimony raised an issue of fact as to whether he fell in a “passageway” or an open work area (Costabile v. Damon G. Douglas Co., 66 AD3d 436 [1st Dept 2009]; compare O’Sullivan v. IDI Constr. Co., Inc., 28 AD3d 225, 225-226 [1st Dept 2006], affd 7 NY3d 805 [2006]).

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