Summary
In Gaffney v BFP 300 Madison II, LLC (18 AD3d 403), this Court found that the motion court providently exercised its discretion in granting the plaintiff's; summary judgment motion on its merits, although it was made live days after the 120-day period of CPLR 3212 (a) had run — or 65 days after the shorter 60 day deadline of the applicable local court rule had run.
Summary of this case from Filannino v. Tunnel AuthOpinion
6202.
May 31, 2005.
Order, Supreme Court, New York County (Debra A. James, J.), entered January 13, 2005, which granted plaintiffs' motion for summary judgment on the issue of liability under Labor Law § 240, unanimously affirmed, without costs.
Before: Andrias, J.P., Friedman, Marlow, Nardelli and Williams, JJ.
The court providently exercised discretion in considering the summary judgment motion, notwithstanding its untimeliness. Plaintiffs demonstrated "good cause" by explaining that the delay was due, in part, to defendant Turner's failure to produce a witness for deposition in a timely fashion prior to the filing of note of issue, and by the delay in obtaining a transcript of said deposition ( see Kunz v. Gleeson, 9 AD3d 480).
Plaintiff laborer was severely injured when one of the hooks supporting the float scaffold on which he was working dislodged and the scaffold collapsed, causing him to fall several stories ( see Labor Law § 240; Aragon v. 233 W. 21st St., 201 AD2d 353). The recalcitrant worker defense, predicated on the injured plaintiff's alleged failure to use a safety harness and other protective devices, is unavailing, since there is no evidence that he deliberately refused to use safety devices provided ( Hagins v. State of New York, 81 NY2d 921). Summary judgment was also appropriate under section 240 (2), as the float scaffold was elevated more than 20 feet and lacked guardrails ( see Emmi v. Emmi, 186 AD2d 1025; Rose v. Mount Ebo Assoc., 170 AD2d 766, 768).
We have considered defendants' remaining contentions and find them unavailing.