Opinion
13926 Index No. 104645/11 90360/12 Case No. 2019-04356
05-27-2021
Tommy HERNANDEZ, Plaintiff–Respondent, v. 767 FIFTH PARTNERS, LLC, et al., Defendants–Respondents. 767 Fifth Partners, LLC, et al., Third–Party Plaintiffs–Respondents, v. J.P. Phillips, Inc., Third–Party Defendant–Appellant. Plaza Construction LLC formerly known as Plaza Construction Corp., Second Third–Party Plaintiff–Respondent, v. J.P. Phillips, Inc., Second Third–Party Defendant–Appellant.
Hardin Kundla McKeon & Poletto P.A., New York (Wayne A. Williams of counsel), for appellant.
Hardin Kundla McKeon & Poletto P.A., New York (Wayne A. Williams of counsel), for appellant.
Kapnick, J.P., Mazzarelli, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered August 6, 2019, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff established prima facie entitlement to partial summary judgment by his testimony that he was injured when the plywood platform of a baker's scaffold upon which he was standing to install window soffits suddenly collapsed beneath him as he reached overhead to drill a screw into a stud (see Kind v. 1177 Ave. of the Ams. Acquisitions, LLC, 168 A.D.3d 408, 91 N.Y.S.3d 394 [1st Dept. 2019] ).
Third-party defendant/second third-party defendant J.P. Phillips, Inc. (Phillips), plaintiff's employer, failed to raise a triable issue that plaintiff was the sole proximate cause of his accident. Phillips did not submit proof establishing that the scaffold was an adequate safety device for the work plaintiff was performing at the time of his accident (see Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 10, 917 N.Y.S.2d 130 [1st Dept. 2011] ). That plaintiff might have been comparatively negligent by allegedly failing to abide by safety instructions, including self-inspecting the scaffold prior to its use, and by attempting to move the scaffold to a different location while standing atop it, does not preclude partial summary judgment in this instance, particularly since Phillips's foreman knew its workers would move scaffolds in that manner (see Hoffman v. SJP TS, LLC, 111 A.D.3d 467, 974 N.Y.S.2d 450 [1st Dept. 2013] ).