Opinion
14519 Index No. 104645/11 590360/12, 155452/13 Case No. 2021–00097
11-16-2021
Tommy HERNANDEZ, Plaintiff–Appellant, v. 767 FIFTH PARTNERS, LLC, et al., Defendants. 767 Fifth Partners, LLC, et al., Third–Party Plaintiffs, v. J.P. Phillips, Inc., Third–Party Defendant–Respondent. [And a Second Third–Party Action]
Jonathan D'Agostino & Associates, P.C., Staten Island (Glen Devora of counsel), for appellant. Hardin Kundla McKeon & Poletto, P.A., New York (Stephen J. Donahue of counsel), for J.P. Phillips, Inc., respondent.
Jonathan D'Agostino & Associates, P.C., Staten Island (Glen Devora of counsel), for appellant.
Hardin Kundla McKeon & Poletto, P.A., New York (Stephen J. Donahue of counsel), for J.P. Phillips, Inc., respondent.
Renwick, J.P., Gonza´lez, Kennedy, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered March 12, 2020, which granted the motion of third-party defendant JP Phillips, Inc. for reargument, and upon reargument, vacated a prior order to the extent it granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim against defendants/third party plaintiffs 767 Fifth Partners, LLC., Boston Properties, Inc., and Plaza Construction Corp., unanimously reversed, on the law, without costs, JP Phillips's motion to reargue denied and plaintiff's motion for partial summary judgment granted, consistent with this Court's order entered May 27, 2021 ( Hernandez v. 767 Fifth Partners, LLC, 194 A.D.3d 649, 144 N.Y.S.3d 559 ).
Plaintiff made a prima facie showing of entitlement to partial summary judgment on his Labor Law § 240(1) claim where the platform of the Baker scaffold he was standing upon fell through its frame to the ground (see Gomez v. Trinity Ctr. LLC, 195 A.D.3d 502, 145 N.Y.S.3d 352 [1st Dept. 2021] ). Conflicting facts as to why the scaffold collapsed are irrelevant because whether the scaffold fell due to a worn platform or an unfixed pin, proper protection was not provided to plaintiff (see Romanczuk v. Metropolitan Ins. & Annuity Co., 72 A.D.3d 592, 899 N.Y.S.2d 228 [1st Dept. 2010] ).
JP Phillips's claim that plaintiff caused the scaffold to collapse is unsupported by the record. There is no evidence that the scaffold collapsed due to the failure to properly place a pin to secure the platform. The project manager who made the allegation conceded that it was based only on his personal opinion, that he had no facts to support it, and that when he saw the scaffold after the accident it had already been disassembled. Moreover, it is the uncontradicted testimony of plaintiff that he did not erect the scaffold. Assuming plaintiff was moving the scaffold at the time of the accident, there is no evidence that such an action caused an otherwise nondefective platform to collapse, and thus it is no defense to the claim (see Aburto v. City of New York, 94 A.D.3d 640, 942 N.Y.S.2d 514 [1st Dept. 2012]; Torres v. Monroe Coll., 12 A.D.3d 261, 262, 785 N.Y.S.2d 57 [1st Dept. 2004] ).