Summary
In Brown, the Court of Appeals held that state constitutional torts may be found "when necessary to effectuate the purposes of... State constitutional protections... or appropriate to ensure full realization of [the plaintiff's] rights" (Brown, 89 NY2d 172 [holding that "implying a damage remedy here is consistent with the purposes underlying the duties imposed by these provisions and is necessary and appropriate to ensure the full realization of the rights they state"]).
Summary of this case from Jones v. City of New YorkOpinion
10440 Index 23260/15
12-12-2019
Abdul BROWN, et al., Plaintiffs–Respondents, v. 43–25 HUNTER, L.L.C., et al., Defendants–Appellants.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellants. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondents.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellants.
Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondents.
Mazzarelli, J.P., Kapnick, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered November 8, 2018, which granted plaintiffs' motion for partial summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) claims, unanimously affirmed, without costs.
Plaintiffs established prima facie entitlement to partial summary judgment on the section 240(1) and 241(6) claims. Plaintiff Abdul Brown testified that he slipped and fell from a wobbly wet ladder, and his foreman provided an affidavit that was consistent with plaintiff's account of the fall (see e.g. Garcia v. Church of St. Joseph of the Holy Family of The City of N.Y. , 146 A.D.3d 524, 525–526, 45 N.Y.S.3d 66 [1st Dept. 2017] ; Rizzo v. Hellman Elec. Corp. , 281 A.D.2d 258, 258–259, 723 N.Y.S.2d 4 [1st Dept. 2001] ). In opposition, defendants failed to raise a triable issue of fact as to whether the accident occurred in the manner described by plaintiff. Defendants submitted the expert affidavits of two medical experts and a biomechanical engineer, each of which contained only speculative, conclusory statements that plaintiff's injuries were inconsistent with a fall to the concrete ground from a height of approximately 20 feet (see Robinson v. NAB Constr. Corp. , 210 A.D.2d 86, 620 N.Y.S.2d 337 [1st Dept. 1994] ; cf. Aspromonte v. Judlau Contr., Inc. , 162 A.D.3d 484, 78 N.Y.S.3d 334 [1st Dept. 2018] ).
The affidavit of the biomechanical engineer was rejected by the motion court because the expert was disclosed for the first time in opposition to plaintiff's summary judgment motion. However, CPLR 3212(b) expressly permits the submission of expert affidavits in connection with a summary judgment motion, even where an expert exchange pursuant to CPLR § 3101(d) was not furnished prior to the affidavit's submission. Therefore, this Court considered the biomechanical engineer's affidavit in its review of the appeal.
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DEPUTY CLERK