Opinion
11095 Index 159773/13ECF
02-20-2020
Robert CARPENTIERI, et al., Plaintiffs–Respondents, v. 309 FIFTH AVENUE, LLC, et al., Defendants–Appellants. [And a Third–Party Action]
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for appellants. Oresky & Associates, PLLC, Bronx (Payne Tatich of counsel), for respondents.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for appellants.
Oresky & Associates, PLLC, Bronx (Payne Tatich of counsel), for respondents.
Renwick, J.P., Mazzarelli, Gesmer, Kern, JJ.
Order, Supreme Court, New York County (Robert D. Kalish, J.), entered on or about August 14, 2018, which granted plaintiffs' motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendants MEPT 309 Fifth Avenue, LLC and Lend Lease (US) Construction, Inc., unanimously affirmed, without costs.
Plaintiff made a prima facie showing that his injuries were caused by a violation of Labor Law § 240(1), by presenting his testimony that he was applying masking tape to a wall fixture to prepare for painting while standing on the top plank of a scaffold about four feet above the floor, when the plank flipped up, causing him to fall to the floor (see Mendez v. Union Theol. Seminary in City of N.Y., 8 A.D.3d 32, 777 N.Y.S.2d 636 [1st Dept. 2004] ). Plaintiff also presented photos of the scaffold showing that it had no guardrails (see Celaj v. Cornell, 144 A.D.3d 590, 42 N.Y.S.3d 25 [1st Dept. 2016] ; Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 280, 800 N.Y.S.2d 134 [1st Dept. 2005] ), and plaintiff was not supplied with any other safety devices (see Camacho v. Ironclad Artists, Inc., 174 A.D.3d 426, 101 N.Y.S.3d 845 [1st Dept. 2019] ).
In opposition, defendants failed to raise a triable issue of fact as to whether the scaffold was an inadequate safety device. Testimony by a site safety manager that he saw another scaffold at some unspecified time after the accident, and that it did not appear defective or consistent with plaintiff's testimony or photos, did not raise an issue of fact (see Haynes v. Boricua Vil. Hous. Dev. Fund Co., Inc., 170 A.D.3d 509, 510, 96 N.Y.S.3d 178 [1st Dept. 2019] ). Furthermore, even assuming that defendants submitted admissible evidence establishing plaintiff's negligence, he was at most comparatively negligent, which is not a defense to Labor Law § 240(1) (see e.g. Celaj, 144 A.D.3d at 590, 42 N.Y.S.3d 25 [moving scaffold while standing on it without locking wheels]; Samuel v. Simone Dev. Co., 13 A.D.3d 112, 786 N.Y.S.2d 163 [1st Dept. 2004].