Opinion
850 Index No. 157170/15 Case No. 2023–00363
10-19-2023
Boaz HARSANYI et al., Plaintiffs–Appellants–Respondents, v. EXTELL 4110 LLC, et al., Defendants–Respondents–Appellants.
Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for appellants-respondents. Malapero Prisco & Klauber LLP, New York (Francis B. Mann, Jr. of counsel), for respondents-appellants.
Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for appellants-respondents.
Malapero Prisco & Klauber LLP, New York (Francis B. Mann, Jr. of counsel), for respondents-appellants.
Kapnick, J.P., Singh, Friedman, Gonza´lez, Shulman, JJ.
Order, Supreme Court, New York County (Lori S. Sattler, J.), entered December 23, 2022, which denied defendants’ motion for summary judgment dismissing the complaint and denied plaintiffs’ motion for summary judgment on the issue of liability on their Labor Law § 240(1) claim, unanimously modified, on the law, plaintiffs’ motion granted, and otherwise affirmed, without costs. Plaintiffs were entitled to summary judgment on the issue of liability on their Labor Law § 240(1) claim. Contrary to the court's determination, the fact that the injured plaintiff could not identify the object that struck him or its origin did not preclude summary judgment in plaintiffs’ favor. A plaintiff's prima facie case in a Labor Law § 240(1) action involving falling objects is not dependent on whether the plaintiff observed the object that hit him ( Malan v. FSJ Realty Group II LLC, 213 A.D.3d 541, 542, 185 N.Y.S.3d 5 [1st Dept. 2023] ). Further, a plaintiff is not required to show the exact circumstances under which the object fell, where a lack of a protective device proximately caused the injuries (see Salcedo v. Sustainable Energy Options, LLC, 190 A.D.3d 439, 439, 139 N.Y.S.3d 197 [1st Dept. 2021] ; Mercado v. Caithness Long Is. LLC, 104 A.D.3d 576, 577, 961 N.Y.S.2d 424 [1st Dept. 2013] ). Here, plaintiff testified that he was struck on the head and neck by an unknown object while working on an outrigging platform on the 25th floor of the building under construction. He also testified that he heard workers stripping wood on the floors above him at the time of the accident, and submitted photographs depicting a large hole in the safety netting that served as overhead protection. This evidence was sufficient to establish prima facie that the accident was the result of a violation of Labor Law § 240(1) (see Arnaud v. 140 Edgecomb LLC, 83 A.D.3d 507, 508, 922 N.Y.S.2d 292 [1st Dept. 2011] ; Angamarca v. New York City Partnership Hous. Dev. Fund Co., Inc., 56 A.D.3d 264, 264–265, 866 N.Y.S.2d 659 [1st Dept. 2008] ). In opposition, defendants failed to provide any version of the accident under which they could not be held liable, making summary judgment appropriate (see Mayorquin v. Carriage House Owner's Corp., 202 A.D.3d 541, 163 N.Y.S.3d 51 [1st Dept. 2022] ; Hill v. Acies Group, LLC, 122 A.D.3d 428, 996 N.Y.S.2d 235 [1st Dept. 2014] ).
In view of the foregoing, defendants’ arguments concerning the Labor Law § 241(6), § 200 and common-law negligence claims are academic (see Viruet v. Purvis Holdings LLC, 198 A.D.3d 587, 588–589, 156 N.Y.S.3d 25 [1st Dept. 2021] ; Cronin v. New York City Tr. Auth., 143 A.D.3d 419, 38 N.Y.S.3d 544 [1st Dept. 2016] ).