Agosto v Museum of Modern Art, 2023 NY Slip Op 04292 [219 AD3d 674]

August 16, 2023

Appellate Division, Second Department

[*1]

Virginia Agosto, Respondent-Appellant,

v

Museum of Modern Art, Appellant-Respondent, et al., Defendant.

Weber Gallagher Simpson Stapleton Fires & Newby LLP, New York, NY (Michael P. McDermott of counsel), for appellant-respondent.

Eric Richman (Subin Associates, LLP, New York, NY [Christopher J. Soverow], of counsel), for respondent-appellant.

In an action to recover damages for personal injuries, the defendant Museum of Modern Art appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered September 29, 2020. The order, insofar as appealed from, denied those branches of the cross-motion of the defendant Museum of Modern Art which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it.

Ordered that the cross-appeal is dismissed as abandoned; and it is further, Ordered that the order is affirmed insofar as appealed from; and it is further, Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff, an HVAC technician employed by nonparty TEC Systems, was using a ladder to replace a CO 2 sensor on premises owned by the defendant Museum of Modern Art (hereinafter the defendant) when a hot water pipe burst, allegedly causing her to fall from the ladder and sustain injuries. The plaintiff commenced this action to recover damages for personal injuries against, among others, the defendant, alleging common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). The plaintiff moved for summary judgment on the issue of liability on the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and [*2] 240 (1). The defendant cross-moved, inter alia, for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it. In an order entered September 29, 2020, the Supreme Court, among other things, denied those branches of the defendant’s cross-motion and denied the plaintiff’s motion. The defendant appeals. The plaintiff cross-appeals.

The cross-appeal must be dismissed as abandoned, as the brief filed by the plaintiff does not seek reversal of any portion of the order ( see Sammy v First Am. Tit. Ins. Co. , 205 AD3d 949 , 953 [2022]).

The Supreme Court properly denied those branches of the defendant’s cross-motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it. “Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work” ( Rodriguez v Metropolitan Transp. Auth. , 191 AD3d 1026 , 1027 [2021]; see Saitta v Marsah Props., LLC , 211 AD3d 1062 , 1063 [2022]). “Where, as here, a plaintiff contends that an accident occurred because a dangerous condition existed on the premises where the work was being undertaken, a defendant moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 must make a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence” ( Calle v City of New York , 212 AD3d 763 , 765 [2023]; see Ortega v Puccia , 57 AD3d 54 , 61 [2008]). “A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected” ( Carrillo v Circle Manor Apts. , 131 AD3d 662 , 664 [2015]). “ ’When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed’ ” ( Alexandridis v Van Gogh Contr. Co. , 180 AD3d 969 , 972 [2020], quoting Schnell v Fitzgerald , 95 AD3d 1295 , 1295 [2012]). “In moving for summary judgment on the ground that [a] defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection” ( Arevalo v Abitabile , 148 AD3d 658 , 660 [2017]; see Buffalino v XSport Fitness , 202 AD3d 902 [2022]).

Here, the defendant failed to establish, prima facie, that the alleged deteriorating condition of a pipe coupling was latent and not discoverable upon a reasonable inspection of the pipes and insulation around the pipes. The defendant’s director of building operations testified that the defendant did not have any system in place to inspect the pipes, couplings, or insulation around the pipes to see if there were any signs of corrosion or deterioration. Thus, the defendant failed to otherwise demonstrate, prima facie, that had it conducted a reasonable inspection, the alleged condition would not have been discoverable.

Accordingly, the Supreme Court properly denied those branches of the defendant’s cross-motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as against it, without regard to the sufficiency of the plaintiff’s opposition papers ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851 [1985]). Barros, J.P., Maltese, Ford and Dowling, JJ., concur..