Summary
In Boccia, there was conflicting evidence as to whether the plaintiff slipped because the ladder shifted or slipped due to water, mud and other debris on the ground, or because wet concrete or wet cement were on plaintiffs' boots.
Summary of this case from SAFT v. 111 CHELSEA, LLCOpinion
No. 1985.
December 20, 2007.
Order, Supreme Court, Bronx County, (Yvonne Gonzalez, J.), entered October 6, 2006, which denied plaintiffs motion for partial summary judgment on his cause of action under Labor Law § 240 (1), unanimously affirmed, without costs.
Pollack, Pollack, Isaac DeCicco, New York (Brian J. Isaac of counsel), for appellants.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York (Debra A. Adler of counsel), for respondents.
Before: Saxe, J.P., Friedman, Sweeny, McGuire and Malone, JJ.
Summary judgment in plaintiffs favor is precluded by an issue of fact as to whether plaintiff fell off the ladder because, as plaintiff claims, it "shifted" or "slipped" due to water, mud, concrete mortar, and other debris on the ground, or because, as defendants claim, plaintiff slipped on the ladder due to "wet concrete" or "wet cement" on his boots ( compare McCormack v Helmsley-Spear, Inc., 233 AD2d 203, with Cruz v Turner Constr. Co., 279 AD2d 322). That issue is raised by the accident reports prepared by plaintiffs foreman in plaintiffs presence on the basis of information provided by plaintiff stating that plaintiff slipped on the ladder due to a wet substance on his boots ( see Buckley v J.A. Jones/GMO, 38 AD3d 461; Antenucci v Three Dogs, LLC, 41 AD3d 205, 206).