Opinion
50 Index No. 152811/18 Case No. 2022–04507
04-18-2023
William FISCHER et al., Plaintiffs–Respondents–Appellants, v. VNO 225 WEST 58TH STREET LLC et al., Defendants–Appellants–Respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants-respondents. The Gucciardo Law Firm, PLLC, Mineola (Daniel P. Maltese of counsel), for respondents-appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants-respondents.
The Gucciardo Law Firm, PLLC, Mineola (Daniel P. Maltese of counsel), for respondents-appellants.
Webber, J.P., Friedman, Singh, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, New York County (William Perry, J.), entered March 23, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim, denied plaintiff's motion for summary judgment on the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23–5.1, and granted plaintiff's motion insofar as predicated on Industrial Code (12 NYCRR) § 23–1.22(b)(2) and striking defendants’ affirmative defense of comparative fault, unanimously modified, on the law, to deny plaintiff's motion as to the Labor Law § 241(6) claim predicated on 12 NYCRR 23–1.22(b)(2), and otherwise affirmed, without costs. In this action in which plaintiff fell from an elevated plywood platform that ran from an exterior hoist of a building into a mechanical room, the court should not have granted plaintiff summary judgment on his Labor Law § 241(6) claim predicated on 12 NYCRR 23–1.22(b)(2), because the record evidence fails to show that the plywood platform was a runway or ramp intended for the use of "persons only" (see Purcell v. Metlife Inc., 108 A.D.3d 431, 432–433, 969 N.Y.S.2d 43 [1st Dept. 2013] ).
The court properly denied plaintiff's motion as to the Labor Law § 241(6) claim predicated on 12 NYCRR 23–5.1. The platform from which plaintiff fell was used by workers to transport materials from the hoist to the mechanical room, and it did not serve as the functional equivalent of a scaffold (see Mutadir v. 80–90 Maiden Lane Del LLC, 110 A.D.3d 641, 643, 974 N.Y.S.2d 364 [1st Dept. 2013] ; see also Maldonado v. Townsend Ave. Enters., Ltd. Partnership, 294 A.D.2d 207, 208, 741 N.Y.S.2d 696 [1st Dept. 2002] ).
The court properly granted defendants summary judgment dismissing the Labor Law § 240(1) claim. Even accepting as true plaintiff's approximation that he fell at a distance of one and one-half to two feet, which was controverted by other testimony that the distance was approximately 10 inches, under the circumstances here, the distance was not a physically significant height elevation differential to trigger the protection of Labor Law § 240(1) (see Toefer v. Long Is. R.R., 4 N.Y.3d 399, 407, 795 N.Y.S.2d 511, 828 N.E.2d 614 [2005] ; Sawczyszyn v. New York Univ., 158 A.D.3d 510, 511, 73 N.Y.S.3d 131 [1st Dept. 2018] ; Lombardo v. Park Tower Mgt. Ltd., 76 A.D.3d 497, 498, 907 N.Y.S.2d 196 [1st Dept. 2010] ).
Defendants’ affirmative defense of comparative fault was properly dismissed, as they did not oppose plaintiff's motion on this issue (see Breslaw v. Sassower, 279 A.D.2d 598, 720 N.Y.S.2d 359 [2d Dept. 2001] ; see also Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 544, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975] ). In any event, the claim is unavailing, as defendants do not cite to anything in the record to establish that plaintiff may have been at comparative fault in causing his accident. Defendants’ contention that plaintiff's attorney's affirmation was insufficient is also unavailing. The attorney's affirmation along with plaintiff's sworn deposition testimony provided sufficient support of plaintiff's motion (see 256 E. 10th St. Assoc. v. Consolidated Edison Co. of N.Y., Inc., 282 A.D.2d 293, 294, 723 N.Y.S.2d 358 [1st Dept. 2001] ).