Opinion
No. 17484 Index No. 30345/18E Case No. 2022-00184
03-09-2023
Guadalupe Patron Hernandez, Plaintiff-Appellant, v. 46-24 28th Street, LLC, Defendant-Respondent.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant. Smith Mazure, P.C., New York (Joel M. Simon of counsel), for respondent.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant.
Smith Mazure, P.C., New York (Joel M. Simon of counsel), for respondent.
Before: Acosta, P.J., Manzanet-Daniels, Kapnick, Shulman, Higgitt, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about June 24, 2021, which, to the extent appealed from, denied plaintiff's cross motion for partial summary judgment as to Labor Law § 240(1) liability, unanimously affirmed, without costs.
The motion court correctly concluded that triable issues of fact precluded granting plaintiff summary judgment on the issue of liability on his Labor Law claim. Plaintiff testified that he fell from an unsecured extension ladder that was leaning against the wall while demolishing a platform inside the third-floor office of a building owned by defendant. Plaintiff also testified that he was working in the office with his coworkers and his foreman. The foreman, however, denied that the events, as described by plaintiff, transpired. The conflicting evidence raises questions of fact as to the manner in which the accident, if any, occurred (see Manna v New York City Hous. Auth., 215 A.D.2d 335, 336 [1st Dept 1995]). Plaintiff and his foreman's testimony also conflicted as to whether plaintiff was intoxicated on the day of the accident; thus, there is also a question of fact as to whether plaintiff was the sole proximate cause of the accident based on his intoxication (see Berman v Franchised Distribs., Inc., 88 A.D.3d 755, 756 [2d Dept 2011]).
We have considered plaintiff's remaining arguments and find them unavailing.