In Agosto v. Museum of Modern Art, 2023 Slip. Op. 04292 (2d Dep’t Aug 16, 2023), the Appellate Division, Second Department, affirmed a lower court decision denying the defendant museum’s motion for summary judgment on plaintiff’s common law negligence and Labor Law § 200 claims.
Plaintiff, an HVAC technician, was conducting routine preventative maintenance when a hot water pipe burst and she fell from her ladder. Plaintiff brought common law and Labor Law §§ 200, 240(1), and 241(6) claims against the museum.
The parties cross-moved for summary judgment. The lower court denied plaintiff’s motion for summary judgment on her §§ 240(1) and 200 and common law claims, but partially granted defendant’s motion in dismissing plaintiff’s §§ 240(1) and 241(6) claims. The lower court found that plaintiff failed to allege that she was engaged at the time of her accident in a Labor Law-protected activity and that did not allege any Industrial Code violation. Notably, although plaintiff moved for summary judgment on her common law and § 200 claims in the lower court, plaintiff at the appellate stage abandoned that argument and instead argued that the lower court got it right that there remain questions of fact whether the museum created or had notice of the of the defective pipes.
The parties at oral argument contested whether any defect that led to plaintiff’s injuries was latent. The Second Department held, consistent with its previous holding in Alexandridis v. Van Gogh Contr. Co., 180 A.D.3d 969 (2d Dep’t 2020), that the defendant-museum failed to establish the defect was latent because the museum could not show that “had it conducted a reasonable inspection, the alleged condition would not have been discoverable.”
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