Opinion
607 Index Nos. 157075/18 595221/21, 595436/21 Case No. 2022–04834
09-26-2023
Salvatore CAFISI, Plaintiff–Respondent, v. L&L HOLDING COMPANY, LLC, et al., Defendants. J.T. Magen & Company Inc., Third–Party Plaintiff, v. National Acoustics, LLC, Third–Party Defendant–Appellant. [And a Second Third–Party Action]
London Fischer LLP, New York (Arthur Tergesen of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco LLP, New York (Jillian Rosen of counsel), for respondent.
London Fischer LLP, New York (Arthur Tergesen of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco LLP, New York (Jillian Rosen of counsel), for respondent.
Renwick, P.J., Moulton, Kennedy, Scarpulla, Higgitt, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about September 9, 2022, which, to the extent appealed from as limited by the briefs, granted so much of plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendant COMREF 380, LLC, defendant/third-party plaintiff J.T. Magen & Company Inc., and Shiseido Americas Corporation, incorrectly sued herein as defendant Shiseido America Inc., unanimously affirmed, without costs.
In this action stemming from a construction site accident, plaintiff testified that he was injured when, as he was descending a Baker scaffold, the scaffold started to shake, move, or tip over for no apparent reason. Plaintiff testified at his deposition that he then let go of, and fell from, the scaffold, landing on a pile of metal straps that were "like a sheet of ice underneath [his] feet," causing him to fall backwards to the floor. This testimony established plaintiff's prima facie entitlement to partial summary judgment on the issue of liability on his Labor Law § 240(1) claim (see e.g. Rroku v. West Rac Contr. Corp., 164 A.D.3d 1176, 1176, 82 N.Y.S.3d 709 [1st Dept. 2018] ; Kind v. 1177 Ave. of the Ams. Acquisitions, LLC, 168 A.D.3d 408, 409, 91 N.Y.S.3d 394 [1st Dept. 2019] ; see also e.g. Pirozzo v. Laight St. Fee Owner LLC, 209 A.D.3d 596, 596, 177 N.Y.S.3d 32 [1st Dept. 2022] ; cf. Hovorka v. Applied Prods. Co., Inc., 199 A.D.3d 520, 521, 154 N.Y.S.3d 435 [1st Dept. 2021] [ Labor Law § 240(1) "applies to situations where a slippery surface combined with an elevation hazard proximately causes a plaintiff's injury"]). Contrary to third-party defendant National Acoustics, LLC's (National) urging, plaintiff testified consistently at his deposition as to the way his accident occurred.
Contrary to National's argument, "[p]laintiff was not required to show that the scaffold was defective" ( Sanchez v. Bet Eli Co. Del. LLC, 177 A.D.3d 478, 479, 110 N.Y.S.3d 540 [1st Dept. 2019] ). Accordingly, issues of fact are not raised either by "evidence that plaintiff checked the scaffold before using it and did not find it to be defective" ( Goundan v. Pav–Lak Contr. Inc., 188 A.D.3d 596, 596–597, 132 N.Y.S.3d 749 [1st Dept. 2020] ; see e.g. Pinzon v. Royal Charter Props., Inc., 211 A.D.3d 442, 443, 179 N.Y.S.3d 218 [1st Dept. 2022] ) or by National's inspection of all of the scaffolds on site the day after plaintiff's accident (see Sanango v. 200 E. 16th St. Hous. Corp., 290 A.D.2d 228, 228, 736 N.Y.S.2d 321 [1st Dept. 2002] ; compare e.g. Perez v. Folio House, Inc., 123 A.D.3d 519, 519, 999 N.Y.S.2d 29 [1st Dept. 2014] ; Ellerbe v. Port Auth. of N.Y. & N.J., 91 A.D.3d 441, 442, 936 N.Y.S.2d 39 [1st Dept. 2012] ).
Equally unavailing is National's argument that plaintiff did not identify the "safety device of the kind enumerated in section 240(1) that could have prevented his fall" ( Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] ). To the contrary, "plaintiff established that he was provided with a safety device, i.e., a [scaffold], but that the [scaffold] proved to be inadequate" ( Pinzon, 211 A.D.3d at 444, 179 N.Y.S.3d 218 ).
The documentary evidence on which National did not establish that the accident report "was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" ( CPLR 4518[a] ). Moreover, the accident report still contains multiple layers of hearsay (see generally Matter of Leon RR, 48 N.Y.2d 117, 122, 421 N.Y.S.2d 863, 397 N.E.2d 374 [1979] ). The entries made in plaintiff's medical records, dated one day and one week after the accident, were neither "germane to the treatment or diagnosis of plaintiff's injuries" nor "admissible as an admission" against interest ( Benavides v. City of New York, 115 A.D.3d 518, 519, 982 N.Y.S.2d 85 [1st Dept. 2014] ; see Greca v. Choice Assoc. LLC, 200 A.D.3d 415, 416, 154 N.Y.S.3d 780 [1st Dept. 2021] ; Nassa v. 1512 LLC, 198 A.D.3d 600, 600, 153 N.Y.S.3d 843 [1st Dept. 2021] ; Grant v. New York City Tr. Auth., 105 A.D.3d 445, 446, 963 N.Y.S.2d 63 [1st Dept. 2013] ; Quispe v. Lemle & Wolff, Inc., 266 A.D.2d 95, 96, 698 N.Y.S.2d 652 [1st Dept. 1999] ).
Thus, "in the absence of evidence controverting his account of the accident or calling into question his credibility[,]" plaintiff was properly awarded partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, even though he was the sole witness to his accident ( Rivera v. Suydam 379 LLC, 216 A.D.3d 495, 496, 189 N.Y.S.3d 126 [1st Dept. 2023] ; see e.g. Pinzon, 211 A.D.3d at 443, 179 N.Y.S.3d 218 ; Valdez v. City of New York, 189 A.D.3d 425, 132 N.Y.S.3d 777 [1st Dept. 2020] ; Rroku, 164 A.D.3d at 1177, 82 N.Y.S.3d 709 ).
Finally, plaintiff's motion was not premature as defendants failed to show what discovery was needed and what any additional discovery could be expected to reveal (see CPLR 3212[f] ; Cruz v. City of New York, 135 A.D.3d 644, 24 N.Y.S.3d 67 [1st Dept. 2016] ; Miller v. Icon Group LLC, 77 A.D.3d 586, 588, 911 N.Y.S.2d 3 [1st Dept. 2010] ; Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP, 44 A.D.3d 557, 557, 843 N.Y.S.2d 630 [1st Dept. 2007] ).