Appeals List released on: June 27, 2024
By Webber, J.P., Gesmer, Kennedy, Rosado, O’Neill Levy, JJ. 26589/15. JOHN E. ALBURQUERQUE, plf-app, v. BEDFORD PARK DELI, INC., ET AL., def-res — Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant — Brooks & Berne, PLLC, Elmsford (Michael E. Andreou of counsel), for Bedford Park Deli, Inc., Bedford Park Candy and Deli and Saleh Makshar, respondents — Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success (Christopher Simone of counsel), for Tri State Management Inc. and Villford Realty Corp., respondents — Judgment, Supreme Court, Bronx County (Joseph E. Capella, J.), entered March 21, 2023, after a jury trial, in favor of defendants dismissing the complaint, unanimously affirmed, without costs. Plaintiff alleges that he slipped on a patch of ice in front of 26-28 Bedford Park Boulevard, which is owned by defendant Villford Realty Corp. and managed by defendant Tri State Management, Inc. There was no testimony as to when the patch of ice plaintiff slipped on was formed and thus no proof that it existed for a sufficient time to provide notice (see Early v. Hilton Hotels, Corp., 73 AD3d 559, 561 [1st Dept 2010]). Accordingly, a directed verdict was properly granted to defendants Tri State Management, Inc., and Villford Realty Corp. Plaintiff testified that the ice patch was formed sometime after the freezing rain and snow that occurred on February 2, 2015. This theory was speculative. In fact, the climatological data showed temperature fluctuations below and above freezing in the two days before the date of the accident on February 5, 2015, including a period of warming for 21 hours prior to the accident (see Saavedra v. City of New York, 137 AD3d 421, 422 [1st Dept 2016]; Katz v. City of New York, 11 AD3d 391, 391-392 [1st Dept 2004]). In addition, plaintiff did not have an expert to interpret the data in support of his theory (see Batista v. Hancock, 190 AD3d 451 [1st Dept 2021]). The jury verdict in favor of Bedford Park Deli, Inc., Bedford Park Candy and Deli, and Selah Makshar (collectively, Bedford Park Deli) was not insufficient or against the weight of the evidence. We reject as unpreserved plaintiff’s argument that the verdict was inconsistent because it found that those defendants negligently created the ice condition, but that the condition was not a substantial factor in causing plaintiff’s injuries. Plaintiff failed to raise that ground and seek clarification before the jury was released (see Barry v. Manglass, 55 NY2d 803, 806 [1981]; Marquez v. 171 Tenants Corp., 220 AD3d 575, 576-577 [1st Dept 2023]; Hernandez v. Consolidated Edison Co. of N.Y., Inc., 198 AD3d 564, 565 [1st Dept 2021]). Plaintiff moved to strike the answer of Bedford Park Deli on the ground that Makshar and one of the Deli’s employees did not respond to subpoenas served on defense counsel directing them to appear to testify at trial. The court properly denied that relief and instead issued missing witness charges, which were the appropriate remedy (see Trainor v. Oasis Roller World, Inc., 151 AD2d 323, 325 [1st Dept 1989]). The trial court also properly denied plaintiff’s motion to strike Bedford Park Deli’s answer or, alternatively, issue an adverse charge on spoliation grounds. Plaintiff failed to make the requisite showing that defendant negligently or intentionally destroyed relevant evidence, as he failed to show that the outdoor security camera would have captured the area of plaintiff’s fall (see Mohammed v. Command Sec. Corp., 83 AD3d 605, 605 [1st Dept 2011], lv denied 17 NY3d 708 [2011]). It was also not error to permit defendants to call an expert orthopedist to testify as to plaintiff’s medical records and to rebut his expert’s testimony instead of the physician who conducted plaintiff’s medical examination on behalf of defendants, as that physician became unavailable for medical reasons. The CPLR 3101(d) notice was neither untimely nor insufficient. Furthermore, the trial court providently exercised its discretion in permitting the expert testimony as plaintiff did not seek to strike it until the trial was underway (see Rivera v. Montefiore Med. Ctr., 28 NY3d 999, 1002 [2016]; Gallo v. Linkow, 255 AD2d 113, 117 [1st Dept 1998]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Moulton, J.P., Friedman, Kapnick, Shulman, Michael, JJ. 2023-01452. IN THE MATTER OF MALACHI B., app, A CHILD UNDER TWENTY-ONE YEARS OF AGE, ETC., TANIA H., Nonparty res, ADMINISTRATION FOR CHILDREN’S SERVICES, pet-res; LAWYERS FOR CHILDREN, INC., AND THE CHILDREN’S LAW CENTER, AMICI CURIAE — Dawne A. Mitchell, The Legal Aid Society, New York (Judith Stern of counsel), for appellant — Sylvia O. Hinds-Radix, Corporation Counsel, New York (Eva L. Jerome of counsel), for Administration for Children’s Services, respondent — Karen Freedman, Lawyers for Children’s Inc., New York (Betsy Kramer of counsel), and, Liberty Aldrich, The Children’s Law Center, Brooklyn (Louise Feld of counsel), for amici curiae — Order, Family Court, New York County (Susan M. Doherty, Ref.), entered on or about January 31, 2023, which, to the extent appealed from as limited by the briefs, determined that pursuant to the New York State Family First Prevention Services Act (the Family First Act) Family Court lacked the decision-making authority to hold an evidentiary hearing, make specific findings, or approve an ongoing Qualified Residential Treatment Program (QRTP) placement at every permanency hearing, unanimously reversed, on the law, without costs, to the extent of declaring that Family Court has decision-making authority as to the appropriateness of the child’s continued placement in a QRTP at every permanency hearing. Although Malachi has already received his requested relief, his appeal, directed at the scope and authority of the Family Court to make findings related to a QRTP at every permanency hearing, raises a significant and novel issue that is likely to reoccur, yet evade review, and warrants an application of the mootness doctrine exception (see generally Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715 [1980]). We find that Family Court has the decision-making authority as to the appropriateness of the child’s continued placement in a QRTP at every permanency hearing (see Family Ct Act §§1088[b], 1089[d][2][viii]). A contrary reading goes against the express purpose of the Family First Act, which is aimed at reducing the use of institutional group placements for children in foster care by limiting the length of time that they can spend there. The Family First Act, codified in New York State through amendments to the relevant provisions in the Family Court Act and Social Services Law, explicitly seeks to “ensure[] more foster children are placed with families by limiting federal reimbursement to only congregate care placements that are demonstrated to be the most appropriate for a child’s needs, subject to ongoing judicial review” (HR Rep 114-628, 114th Cong, 2d Sess at 28). Furthermore, finding otherwise would lead to an absurd outcome where the court must review evidence about the continued necessity for a QRTP placement at each permanency hearing and simultaneously be powerless to exercise any level of oversight, even if there is proof that the placement is no longer appropriate. That the legislative landscape requires an assessment and court determination whenever a child simply moves between facilities, even if that move does not change the level of care, lends further support to the argument that the Legislature intended for the court to have ongoing oversight and review power in the QRTP context (see Family Ct Act §1089[d]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Webber, J.P., Gesmer, Rosado, O’Neill Levy, JJ. 654394/15. BOARD OF MANAGERS OF THE RESIDENTIAL SECTION OF THE PLAZA CONDOMINIUM, plf-app, v. KRISTIN FRANZESE ETC., ET AL., def, BOARD OF MANAGERS OF THE PLAZA CONDOMINIUM, def-res — Holland & Knight LLP, New York (Robert S. Bernstein of counsel), for appellant — Kaufman Borgeest & Ryan LLP, Garden City (Cara A. O’Sullivan of counsel), for respondent — Order, Supreme Court, New York County (Suzanne J. Adams J.), entered May 18, 2023, which, to the extent appealed from as limited by the briefs, granted respondent ‘s motion to dismiss plaintiff’s cause of action for conversion, unanimously affirmed, without costs. Plaintiff failed to state a cause of action for conversion. Plaintiff, the board of managers of the residential section of a mixed-use condominium, alleges in its third amended complaint that respondent overcharged it for utilities and then, despite the terms of the building’s offering plan and bylaws, used the funds to pay for utility costs incurred by the nonresidential unit owners. Plaintiffs do not allege, however, that respondent breached a duty of care distinct from its contractual obligations, or that it violated any legal duty apart from its obligations under the offering plan and bylaws to properly allocate payments among the various sections of the building (see New York Univ. v. Continental Ins. Co., 87 NY2d 308, 316 [1995]; Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382, 389 [1987]). In fact, the offering plan and by-laws provide the only authority governing allocation of the utility charges. Thus, the cause of action for conversion does not allege conduct that would give rise to liability in tort, but rather is in the nature of a breach of contract cause of action (see Pomerance v. McGrath, 124 AD3d 481, 482 [1st Dept 2015], lv dismissed 25 NY3d 1038 [2015]). The court providently exercised its discretion in denying plaintiff’s request to amend the pleadings for a fourth time. Plaintiff failed to submit any proposed amended pleadings or substantiation for its proposed new claims (CPLR 3025(b); see Hoppe v. Board of Directors of 51-78 Owners Corp., 49 AD3d 477, 477 [1st Dept 2008]). We have considered plaintiff’s remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Webber, J.P., Gesmer, Kennedy, Rosado, O’Neill Levy, JJ. 811275/21E. DAISY DIAZ ETC., ET AL., plf-res, v. SYED U. NASIR, M.D., ET AL., def, CANDACE CRUTCHFIELD ETC., ET AL., def-app — Bennett, Bricklin & Saltzburg, LLC, New York (Joseph DeDonato of counsel), for Michael B. Shannon, M.D., appellant — Napoli Shkolnik, PLLC, Melville (Joseph L. Ciaccio of counsel), for respondents — Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about September 8, 2023, which, insofar as appealed from as limited by the briefs, denied defendant Michael B. Shannon, M.D.’s cross-motion to dismiss all claims against him, unanimously reversed, on the law, without costs, and the cross-motion granted. Defendant Michael B. Shannon, M.D. contends that this action should have been dismissed as against him for lack of timely service under CPLR 306-b (see generally Leader v. Maroney, 97 NY2d 95, 103-106 [2001]; Henneberry v. Borstein, 91 AD3d 493, 495-496 [1st Dept 2012]). It is undisputed on appeal that plaintiff failed to properly serve Shannon within 120 days of commencement of this action. Plaintiff does not purport to have demonstrated good cause for the delay. We find that an extension of time to serve Shannon was not warranted in the interest of justice. Shannon’s unrebutted affidavit reflects that service was attempted at an office where he worked only as an independent contractor and that his residence and principal place of business were in Ohio. Plaintiff failed to make any effort to investigate further or to correct this error when Shannon failed to appear or answer. She did not file her default motion until nearly two years after commencing this action, which is well over the one-year deadline to make such a motion (see CPLR 3215[c]). The motion was also filed after discovery and motion practice were well underway. While plaintiff did request an extension of time to serve Shannon, that request was made after Shannon moved to dismiss and therefore weighs against an interest of justice extension (see Riccio v. Ghulam, 29 AD3d 558, 560 [2d Dept 2006]). Similarly, although the fact that the statute of limitations on the medical malpractice claim against Shannon expired prior to plaintiff’s making the default motion is “a factor that usually would weigh in the plaintiff’s favor” (see CPLR 214-a; LaSalle Bank, NA v. Ferrari, 210 AD3d 976, 978 [2d Dept 2022]), dismissal is nonetheless warranted given the lengthy delay due to plaintiff’s lack of diligence (see LaSalle Bank, 210 AD3d at 978). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Webber, J.P., Gesmer, Kennedy, Rosado, O’Neill Levy, JJ. 155646/22. COLLEEN DYE ET AL., plf-res, v. RBNB 20 OWNER LLC, ET AL., def-app — Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Steven V. DeBraccio of counsel), for appellants — Order, Supreme Court, New York County (Paul A. Goetz, J.) entered on or about December 1, 2023, which denied defendants’ motion under CPLR 2221(e) for leave to renew their motion for use and occupancy pendente lite, unanimously affirmed, without costs. The motion court providently denied defendants’ motion for leave to renew their motion for use and occupancy. Although defendants maintain that the New York City Department of Buildings (DOB) records show that the 59-story residential building’s elevators were repaired, they fail to explain, as required by CPLR 2221(e)(3), why the DOB records were purportedly unavailable at the time of the original motion, nor do they explain why these records would be dispositive. While defendants urge that renewal may be granted “in the interest of justice even upon facts that were known to the movant at the time the original motion was made” (Kaszar v. Cho, 160 AD3d 501, 502 [1st Dept 2018]), we do not find that such circumstances are present here. As determined in this Court’s March 14, 2024, order affirming the denial of defendants’ motion for use and occupancy, the central question in this case is whether defendants’ alleged failure to provide elevator service constituted an actual partial eviction, “suspending plaintiff’s obligation to pay rent or use and occupancy” for the period in question (Dye v. RBNB 20 Owner LLC, 225 AD3d 468, 468 [1st Dept 2024]). Therefore, we find no basis for disturbing our earlier determination that the “remedy for any over or underpayment [of use and occupancy] is a speedy trial” (Dye v. RBNB 20 Owner LLC, 225 AD3d at 469). We have considered defendants’ remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Moulton, J.P., Friedman, Kapnick, Shulman, Michael, JJ. 304049/16. ESTHER J. LAUBER, plf-app, v. CHAIM M. LAUBER, def-res — Andrew Citron, New York, for appellant — Judgment, Supreme Court, New York County (Douglas E. Hoffman, J.), entered December 1, 2021, after a trial, to the extent appealed from as limited by the brief, awarding plaintiff wife monthly basic child support of $250 for the support of the parties’ two children, and bringing up for review an order, same court and Justice, entered on or about April 3, 2020, insofar as it ordered defendant husband to pay the wife monthly basic child support in the amount of $250 retroactive to the parties’ February 2018 physical separation, unanimously affirmed, without costs. Pursuant to Domestic Relations Law §240(1-b) (f), the child support calculation under the CSSA is “presumptively correct,” “unless the court finds that the non-custodial parent['s] pro-rata share of the basic child support obligation is unjust or inappropriate” (Michael J.D. v. Carolina E.P., 138 AD3d 151, 154 [1st Dept 2016]; see Domestic Relations Law §240[1-b] [f]). Here, as the statute requires, the court considered the enumerated factors before deviating from the CSSA guideline amount, articulated its reasons for making such deviation, and related its reasons to the statutory factors. The wife’s arguments on appeal are unavailing. She argues the court unfairly drew conclusions about the husband’s financial situation, yet does not dispute that, pursuant to an interim agreement entered into in February 2018, she had to provide $25,000 in financial assistance to him to be able to move out of the marital residence. She argues the court should not have taken into consideration that the husband had nearly equal parenting time with her. Although her point has merit (see e.g. Bast v. Rossoff, 91 NY2d 723, 730-731 [1998]), the court’s observation, read in context, was apparently made to highlight the husband’s involvement in the children’s lives and to reiterate his less advantageous financial situation, relative to the wife’s. The wife argues the court should not have faulted her for an inability to substantiate the husband’s income or deductions from his income, given that she could not do so because of his failure to produce any updated financial information. However, while the court did note the absence of proof in this regard, it also acknowledged that the wife’s child support worksheet calculations (and, at least impliedly, the information about the husband’s income she used therein) were correct. Nevertheless, it went on to hold that, under the circumstances here, such calculations were only the first step in the inquiry. The wife faults the court for imputing $15,000/year income to her yet shows no reason for this Court to revisit this determination. The court was modest about what it imputed: minimum wage ($15/hour), for the 20 hours/week that the children were in school, and the wife acknowledges that she did testify as to the children’s school schedule. The court was thus mindful of what she might earn without expending child care costs. Nor does she try to challenge the assumptions that support the court’s determination: that she had worked outside of the home in the past and had the capacity to do so again. She also presents no reason to revisit the imputation of additional income to her based on her living situation. She avers there was no “competent evidence” that she lived, as the court surmised, rent-free, but the evidence she proffered supports this conclusion. Specifically, she submitted a net worth statement stating she does not work and has zero income, and testified that she has received no W-2 income at least since 2016, yet her net worth statement also stated that she has maintenance/condo charges of $8,000/month. The court reasonably interpreted this evidence to mean that those housing costs are being paid by someone other than herself (see e.g. Matter of Nannan L. v. Stephen L., 191 AD3d 533 [1st Dept 2021]). We have considered the wife’s remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Webber, J.P., Gesmer, Kennedy, Rosado, O’Neill Levy, JJ. 100047/23. LEA LEE NÉE ELEONORE GROËN NITZSCHKE, plf-app, v. ELISABETH ROYER GRIMBLAT ET AL., def-res — Lea Lee née Eleonore Groën Nitzschke, appellant pro se — Krantz & Berman LLP, New York (Larry H. Krantz of counsel), for Elisabeth Royer Grimblat, Rose Louisa Groën and Julie Renee Groën, respondents — Order, Supreme Court, New York County (Lyle E. Frank, J.), entered June 5, 2023, which granted defendants Rose Louisa Groen, Julie Renee Groen (together, Groen defendants), and Elisabeth Royer Grimblat’s motion to dismiss the complaint against them pursuant CPLR 3211(a)(1) and (8), unanimously affirmed, without costs. Plaintiff alleges that her sisters, the Groen defendants, conspired with defendant Royer Grimblat to sell an Alexander Calder mobile (the Mobile) owned by their mother, Frederique Nitzschke-Groen, to defendants Edward Tyler Nahem and Edward Tyler Nahem Fine Art, without plaintiff’s knowledge or authorization. Supreme Court properly granted the Groen defendants’ motion to dismiss for lack of personal jurisdiction. The sisters showed that they are French citizens and that neither of them engaged in any regular business or persistent conduct in New York that would bring their conduct within the ambit of CPLR 302(a)(3). The assertion of long-arm jurisdiction over them would not comport with due process, as there is no showing that the sisters “purposefully [availed themselves] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (Williams v. Beemiller, Inc., 33 NY3d 523, 528 [2019] [internal quotation marks, citation, and alteration omitted]). In support of their motion to dismiss pursuant to CPLR 3211(a)(1), defendants submitted documentary evidence to show that the Mobile was consigned for sale by Frederique and sold before Frederique’s death on December 26, 2017. At that time, the record does not reflect that Frederique required authorization from anyone in order to sell her property during her lifetime. Specifically, they submitted evidence that in March 2015, Frederique consigned the Mobile to defendant Royer Grimblat for sale, and that, in November 2017, Royer Grimblat entered into an agreement to sell the Mobile to defendant Nahem, who wired partial payment to Royer Grimblat in December 2017, shortly before Frederique died. The document conveyed the agreement that Royer Grimblat could sell the mobile owned by Frederique “[f]or a price of (two million dollars minimum).” This document, together with the invoice for the Mobile dated November 20, 2017, the air waybill for the Mobile dated December 19, 2017, and a death certificate stating that Frederique died on December 26, 2017, the authenticity and accuracy of which plaintiff does not dispute, conclusively establish that the Mobile was consigned and sold before Frederique died (see Leon v. Martinez, 84 NY2d 83, 88 [1994]). In opposition, plaintiff does not fundamentally raise questions about the authenticity or validity of the consignment or sale prior to Frederique’s death. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Oing, J.P., Moulton, Kapnick, Mendez, Shulman, JJ. 23614/16E. VENICIO LOURENCO, plf-app, v. CITY OF NEW YORK, def-res, METROPOLITAN TRANSPORTATION AUTHORITY, ET AL., def — Lisa M. Comeau, Garden City, for appellant — Clausen Miller PC, New York (Joseph J. Ferrini of counsel), for respondent — Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 20, 2022, which, to the extent appealed from as limited by the briefs, granted defendant City of New York’s motion for summary judgment dismissing the common-law negligence and Labor Law §§200 and 241(6) claims against it, and denied plaintiff’s motion for partial summary judgment as to liability on the Labor Law §241(6) claim predicated on Industrial Code (12 NYCRR) §§23-1.7(d), 23-1.7(e)(1) and (2), 23-2.1(a)(1), 23-2.2(d), and 23-3.3(k)(1)(ii), unanimously modified, on the law, to grant plaintiff’s motion as to the Labor Law §241(6) claim insofar as predicated on Industrial Code §§23-1.7(d) and 23-1.7(e)(1) and (2), and to deny the City’s motion as to those claims and the common-law negligence and Labor Law §200 claims, and otherwise affirmed, without costs. This action arises from an accident that occurred during the reconstruction of Fordham Plaza, a commercial and transportation hub in the Bronx. The City owned the property and hired plaintiff’s employer, Padilla Construction Services, Inc., as the general contractor. Plaintiff’s work involved demolishing and rebuilding part of Fordham Plaza, including the sidewalk. The accident occurred when plaintiff, while moving a long metal beam on his shoulder through a passageway, slipped and tripped on a large piece of plastic sheeting covering a rock. At his deposition, plaintiff testified that he and his coworkers were in the process of dismantling a sidewalk bridge and rebuilding it at another location. After dismantling the sidewalk bridge, plaintiff and his coworkers placed the pieces inside the station at the Plaza. Plaintiff testified that he picked up one of the heavy beams and began walking with it to the new location for the sidewalk bridge, which was about 80 feet from where he picked up the beam. Plaintiff walked down a very narrow “passage” for about 30 feet “inside of the station” with the heavy beam on his shoulder. He explained that he saw rocks, pieces of concrete, and pieces of wood on the ground. Plaintiff recognized the rocks as part of a concrete sidewalk that Padilla had previously dismantled. He explained that Padilla used pieces of wood to pour cement for a new sidewalk. Plaintiff testified that he saw a 40-foot aluminum extension ladder (not fully opened, as the station’s ceiling was 18-feet high) leaning up against the wall inside the station “in the middle of the way” where plaintiff “had to pass.” Plaintiff testified that he could not walk to the left of the ladder because there “was a lot of dirt” there, so he had to go under the ladder. As plaintiff tried to avoid the ladder, his left foot slipped on the plastic, causing him to do a “kind of split.” He also testified that the rock underneath the plastic caused him to lose his balance. The beam that he was carrying struck the ladder, which contributed to his fall. Apart from plaintiff, no one witnessed the accident. Plaintiff explained that the plastic and the rock were part of loose debris that workers would deposit in “piles” in the station until the debris was cleared away. Padilla would remove the debris with a truck or Bobcat every “three days, a week.” According to plaintiff, the plastic was used to cover cement when it was raining. Three days before the accident, plaintiff complained to his superintendent that the site was “very dirty.” The motion court should have granted plaintiff partial summary judgment on his Labor Law §241(6) claim predicated on violations of Industrial Code §§23-1.7(d) and 23-1.7(e)(1) and (2). Plaintiff met his burden of showing that these provisions applied; that Padilla violated the specific commands of these provisions; that the violations constituted negligence; and that the violations proximately caused plaintiff’s injuries (see Bazdaric v. Almah Partners LLC, 41 NY3d 310, 319-322 [2024]). In response, the City failed to raise a triable issue of fact. Industrial Code §23-1.7 is entitled “Protection from general hazards.” Subsection (d) provides: “Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”1 The sole basis for the motion court’s finding that §23-1.7(d) was inapplicable to plaintiff’s accident was the court’s conclusion that the plastic upon which plaintiff slipped did not constitute a “foreign substance.” The court (and the City) relied on Bazdaric v. Almah Partners LLC for this proposition (203 AD3d 643, 644 [1st Dept 2022] [plastic sheeting covering escalator steps was not a "foreign substance" under Industrial Code §23-1.7(d) because it was "not similar in nature to the foreign substances listed in the regulation, i.e., ice, snow, water or grease"]). However, the decision was subsequently reversed by the Court of Appeals (Bazdaric, 41 NY3d at 320, [plastic sheet was a "foreign substance" under the regulation as it shared the same slippery quality as "ice, snow, water, and grease"]). Plaintiff also relies on Industrial Code §§23-1.7(e)(1) and (2). Those sections provide: “Tripping and other hazards. “(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered. “(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”2 The sole basis for the motion court’s finding that sections 23-1.7 (e)(1) and (2) were inapplicable was its erroneous conclusion that “the subject piece of plastic was part of the demolition work [p]laintiff’s employer, Padilla, was contracted to perform, thus, it constituted an integral part of the work.” This view misconstrues the defense. The plastic and the rock were not integral to the work performed by plaintiff or his coworkers because it constituted an accumulation of debris from previous work that was left in a “passageway” or “working area” which should have been kept free of debris (see Rossi v. 140 W. JV Mgr. LLC, 171 AD3d 668, 668 [1st Dept 2019] ["The debris, consisting of cables from elevator shaft demolition, was not inherent in, or an integral part of, the work being performed by either plaintiff electrician or Vanquish at the time of the accident…but rather constituted an accumulation of debris from which Vanquish was required to keep work areas free"]; Tighe v. Hennegan Constr. Co., Inc., 48 AD3d 201, 202 [1st Dept 2008] [debris accumulated as a result of demolition "was not an integral part of the work being performed by the plaintiff at the time of the accident"]; see also Bazdaric, 41 NY3d at 320 [integral to the work defense "applies only when the dangerous condition is inherent to the task at hand"]). The “task at hand” did not involve demolition. It is uncontested that plaintiff and his coworkers were dismantling and rebuilding a sidewalk bridge at a new location and that plaintiff fell when he slipped and tripped while manually transporting a heavy beam to the new location. While it is undisputed that Padilla was a general contractor that did demolition work, the court’s overly broad view of the integral to the work defense reads sections 23-1.7(e)(1) and (2) out of existence. The City’s reliance on plaintiff’s testimony that Padilla used plastic sheeting to cover recently poured sidewalk cement to protect it from the rain fares no better. The City speculates that plaintiff may have fallen on plastic that was covering recently poured cement because plaintiff fell roughly 30 feet from one sidewalk and 50 feet from another sidewalk. However, plaintiff testified that he slipped and tripped on discarded plastic sheeting that covered a rock approximately 30 feet inside a passageway in the station. Plaintiff could not have slipped and tripped on plastic sheeting that was protecting recently poured cement from the rain because the accident occurred inside the station. There is nothing in the record to indicate that Padilla could not simultaneously conduct the work and comply with the commands of sections 23-1.7(e)(1) and (2) (see Bazdaric, 41 NY3d at 321 ["the particular commands of the Industrial Code may not apply if they would make it impossible to conduct the work"]). Finally, the City unpersuasively argues that plaintiff is not entitled to partial summary judgment under Labor Law §241(6) because an issue of fact exists as to his credibility. According to the City, plaintiff’s testimony that he slipped and tripped on plastic that was covering a rock “chang[es] details” in his story. The City points to the evidence that it submitted below (i.e., the affidavit of superintendent Michael Khmil, the accident reports, the medical records, and plaintiff’s workers’ compensation C-3 form). The City argues that this evidence contradicts plaintiff’s testimony because the evidence does not mention that plaintiff slipped and tripped on plastic that was covering a rock. Assuming the admissibility of this evidence, plaintiff’s deposition testimony is not inconsistent with it (see Piedra v. 111 W. 57th Prop. Owner LLC, 219 AD3d 1235, 1235 [1st Dept 2023] ["That plaintiff reported to his foreman only that he fell, without mentioning that he slipped or tripped on wood debris, does not detract from his credibility, nor does plaintiff's report to the foreman qualify as an inconsistent statement"]; Ping Lin v. 100 Wall St. Prop. L.L.C., 193 AD3d 650, 652 [1st Dept 2021] [the plaintiff's testimony was not inconsistent "merely because he gave a more detailed description of how the accident occurred at his deposition, as compared to his terse statement to his supervisor immediately after his fall"]). Moreover, as plaintiff points out, the evidence is neither reliable nor admissible. It is uncontested that plaintiff did not speak English, that he spoke Portuguese, and that Padilla’s foreman, “Teixeira,” who spoke Portuguese, would translate for him. Notably, in his affidavit, Khmil did not aver that he spoke Portuguese, yet he stated that plaintiff described the details of his accident to him. When the City originally opposed plaintiff’s motion for partial summary judgment under Labor Law §241(6), it relied on Khmil’s affidavit, claiming that plaintiff reported the accident directly to him. On appeal, the City changes its story to avoid the language barrier problem raised in plaintiff’s motion papers below. The City now attempts to rely on plaintiff’s testimony that he “told his foreman [Teixeira] the details the following Monday, which the foreman then relayed to the superintendent [Khmil] in [plaintiff's] presence.” However, the City did not submit an affidavit from Teixeira (or any other Portuguese speaker) stating that he accurately translated to Khmil the information that plaintiff provided to him (see Quispe v. Lemle & Wolff, Inc., 266 AD2d 95, 96 [1st Dept 1999]). The City’s revised position indicates that Khmil’s affidavit is unreliable (and, consequently, so are the accident reports that he prepared). In any event, the City relies on evidence that is based on hearsay, which cannot, standing alone, defeat summary judgment (see Nava-Juarez v. Mosholu Fieldston Realty, LLC, 167 AD3d 511, 512 [1st Dept 2018]). The City failed to establish that plaintiff was the source of the information recorded and that the information was accurately translated, which is necessary to qualify the information under an exception to the hearsay rule (see e.g. Quispe, 266 AD2d at 96 [hospital triage report inadmissible under an exception to the hearsay rule as a business record or an admission against interest because it required "a showing by [the] defendants, as proponents of the evidence, that [the] plaintiff was the source of the information recorded…and that the translation was provided by a competent, objective interpreter whose translation was accurate”]; Nava-Juarez, 167 AD3d at 512 ["Defendants, as the proponents of the evidence, were obligated to show that (the) plaintiff was the source of the information recorded in the C-3…and that the translation was provided by a competent, objective interpreter whose translation was accurate" (internal quotation marks omitted)]). The statements in the medical records, which were not authenticated or certified, were also hearsay because “the disputed cause of plaintiff’s injury…[was] not germane to plaintiff’s diagnosis or treatment” (Quispe, 266 AD2d at 96). The court properly granted the City’s motion for summary judgment dismissing the Labor Law §241(6) claim insofar as predicated on the remaining Industrial Code sections. The piece of plastic and rock, which were byproducts of demolition and concrete work, were not a “material pile” under Industrial Code §23-2.1(a)(1). The broken pieces of wood from forms in the accident area, which were from concrete work, were also not a “material pile” and, in any event, were not a proximate cause of the accident (see Langer v. MTA Capital Constr. Co., 184 AD3d 401, 402 [1st Dept 2020]). For the same reason, Industrial Code §23-2.2(d) also does not apply, as any violation was not a proximate cause of the accident. Concerning the alleged violation of Industrial Code §23-3.3(k)(1)(ii), the piece of plastic and rock were not “materials” being “stored” (see Sande v. Trinity Ctr. LLC, 188 AD3d 505, 506 [1st Dept 2020]). The City established its prima facie entitlement to judgment as a matter of law on the causes of action alleging common-law negligence and a violation of Labor Law §200 by demonstrating that they did not have actual supervisory control over the means and method of plaintiff’s work (see Ortega v. Everest Realty LLC, 84 AD3d 542, 543 [1st Dept 2011]). The City’s mere retention of the contractual privilege to override hazardous means and method of the work is insufficient to infer actual supervisory control (see Brown v. New York City Economic Dev. Corp., 234 AD2d 33, 33 [1st Dept 1996]). Similarly, the City’s representatives’ presence at the site and their inspections of the site are insufficient to infer actual supervisory control (see Foley v. Consolidated Edison Co. of N.Y., Inc., 84 AD3d 476, 477-478 [1st Dept 2011]). However, to the extent those causes of action are also predicated on the existence of a dangerous or defective condition, triable issues of fact remain as to whether the City had actual or constructive notice (see Jackson v. Hunter Roberts Constr., L.L.C., 205 AD3d 542, 544 [1st Dept 2022]). The City’s witness did not testify to a lack of knowledge of debris in the accident area, thereby failing to establish lack of actual notice (see id.). The City also failed to present evidence of any cleaning or maintenance schedule with respect to the accident area (see Aramburu v. Midtown W. B, LLC, 126 AD3d 498, 500 [1st Dept 2015]). Furthermore, there are triable issues of fact as to whether the City had constructive notice of a dangerous or defective condition on the premises that was visible and apparent prior to plaintiff’s accident (see Gordon v. American Museum of Natural History, 67 NY2d 836, 837 [1986]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
