Justice David Schmidt

Worker Nicoletti sued to recover damages for injuries he sustained when he fell through a rear deck of Iracane’s home. Iracane hired Nicoletti’s brother-in-law, who subcontracted to Nicoletti. As Nicoletti and a helper visited the home to determine the scope of their work, the deck collapsed and they fell nearly 12 feet. Nicoletti asserted his injuries resulted from Iracane’s negligence and Labor Law violations. Iracane moved to dismiss. The court stated the record refuted Iracane’s assertion that Nicoletti cannot recover for injuries resulting from the deck’s structural deficiencies as he was hired to remedy them. It stated at the time of the accident, Nicoletti’s brother-in-law was not yet hired to replace the deck’s structure. The record also refuted Iracane’s alternative contention that Nicoletti may not recover for his injuries as the deck’s deficiencies were readily observable, finding Nicoletti’s pretrial testimony refuted the claim. The court noted the open and obvious nature of an allegedly dangerous condition did not preclude a finding of liability against the landowner. Yet, no constructive notice could be imputed where the alleged deficiencies were latent and would not be discoverable by a layman upon reasonable inspection. It granted Iracane’s motion.