Plaintiff established as a matter of law that Nichols violated Vehicle and Traffic Law § 1110 (a) by inexcusably disobeying a traffic-control device and driving directly into plaintiff's vehicle (seePeterson v. Ward , 156 A.D.3d 1438, 1439, 67 N.Y.S.3d 737 [4th Dept. 2017] ; Amerman v. Reeves , 148 A.D.3d 1632, 1633, 50 N.Y.S.3d 717 [4th Dept. 2017] ; Redd v. Juarbe , 124 A.D.3d 1274, 1275, 1 N.Y.S.3d 638 [4th Dept. 2015] ), and defendants failed to raise a triable issue of fact in opposition. Defendants’ reliance upon deposition testimony from Manning about a hearsay statement that Nichols allegedly made to her, which directly contradicted Nichols's deposition testimony, " ‘clearly constituted an attempt to avoid the consequences of [his] prior deposition testimony by raising feigned issues of fact, and was [thus] insufficient to avoid summary judgment’ " ( Martin v. Savage , 299 A.D.2d 903, 904, 750 N.Y.S.2d 684 [4th Dept. 2002] ; seeChrisman v. Syracuse Soma Project, LLC , 192 A.D.3d 1594, 1596, 145 N.Y.S.3d 717 [4th Dept. 2021] ; Alati v. Divin Bldrs., Inc. , 137 A.D.3d 1577, 1579, 27 N.Y.S.3d 747 [4th Dept. 2016] ). We have considered defendants’ remaining contentions and conclude that they are without merit.
In Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 351 (1998), the Court of Appeals held that a violation of the Industrial Code is not conclusive with respect to defendant's liability, and merely constitutes "some evidence of negligence and thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances." See also Seaman v Bellmore Fire Dist., 59 A.D.3d 515 (2d Dept 2009); Chrisman v Syracuse SOMA Project, LLC, 192 A.D.3d 1594 (4th Dept 2021). Therefore, that branch of the plaintiff's summary judgment motion based on a violation of Labor Law § 241(6) must be denied.
In Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 351 (1998), the Court of Appeals held that a violation of the Industrial Code is not conclusive with respect to defendant's liability, and merely constitutes "some evidence of negligence and thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances." See also Seaman v Bellmore Fire Dist., 59 A.D.3d 515 (2d Dept 2009); Chrisman v Syracuse Soma Project, LLC, 192 A.D.3d 1594 (4th Dept 2021). Accordingly, the branch of the plaintiff's summary judgment motion based on a violation of Labor Law § 241(6) must be denied.
In Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 351 (1998), the Court of Appeals held that a violation of the Industrial Code is not conclusive with respect to defendant's liability, and merely constitutes "some evidence of negligence and thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances." See also Seaman v Bellmore Fire Dist., 59 A.D.3d 515 (2d Dept 2009); Chrisman v Syracuse SOMA Project, LLC, 192 A.D.3d 1594 (4th Dept 2021). Accordingly, the branch of the plaintiff's summary judgment motion based on a violation of Labor Law § 241(6) must be denied.
Moreover, the violation of Industrial Code § 23-1.7(e)(2) does not "merely constitute[..] 'some evidence of negligence"' which requires a finder of fact to weigh in on whether the acts constituting the alleged violation was reasonable under the circumstances. See Chrisman v. Syracuse Soma Project, LLC, 192 A.D.3d 1594, 1595-96 (4th Dep't 2021). Rather, Industrial Code § 23-1.7(e)(2) is clear in specifically commanding that construction tools and materials should not be left on the floor of a construction area.
In Rizzuto v L.A. Wenger Contr. Co. , 91 NY2d 343, 351 (1998), the Court of Appeals held that a violation of the Industrial Code is not conclusive with respect to defendant's liability, and merely constitutes "some evidence of negligence and thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances." See alsoSeaman v Bellmore Fire Dist. , 59 AD3d 515 (2d Dept 2009) ; Chrisman v Syracuse SOMA Project, LLC , 192 AD3d 1594 (4th Dept 2021). Accordingly, the branch of the plaintiff's summary judgment motion based on a violation of Labor Law § 241(6) must be denied.
In Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 351 (1998), the Court of Appeals held that a violation of the Industrial Code is not conclusive with respect to defendant's liability, and merely constitutes "some evidence of negligence and thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances." See also Seaman v Bellmore Fire Dist., 59 A.D.3d 515 (2d Dept 2009); Chrisman v Syracuse SOMA Project, LLC, 192 A.D.3d 1594 (4th Dept 2021).
Mr. Dechert also confirmed at his deposition that the Measured Mile Approach is the approach LPC directed Frey to follow and that it constitutes a "comparison between the bid estimate and the actual hours" (Id. , at p. 127). Accordingly, subsequent statements by Mr. Dechert criticizing the Measured Mile Approach as an inappropriate basis to have calculated the Claim constitute an improper "attempt to create feigned issues of fact designed to avoid the consequences of the earlier testimony" ( Sunshine Care Corp. v. Warrick, 100 AD3d 981, 983 [2d Dept 2012] [rejecting affidavit "as an attempt to create feigned issues of fact designed to avoid the consequences of the earlier testimony"]; see also , Chrisman v. Syracuse Soma Project, 192 AD3d 1594, 1596 [4th Dept 2021] ["averments in the affidavit ... which contradicted his deposition testimony, clearly constituted an attempt to avoid the consequences of [his] prior deposition testimony by raising feigned issues of fact, and was [thus] insufficient to avoid summary judgment"]). Whether the Measured Mile Approach is the correct manner in which to have calculated the Claim is irrelevant, because LPC directed Frey to adhere to the Measured Mile Approach, and parties are permitted to chart their own course (seeMitchell v. NY Hosp. , 61 NY2d 208, 214 [1984] ["unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course ... [and] may fashion the basis upon which a particular controversy will be resolved ... and in doing so they may stipulate away statutory, and even constitutional rights"] [internal punctuation and citations omitted]).
Mr. Dechert also confirmed at his deposition that the Measured Mile Approach is the approach LPC directed Frey to follow and that it constitutes a "comparison between the bid estimate and the actual hours" (Id., at p. 127). Accordingly, subsequent statements by Mr. Dechert criticizing the Measured Mile Approach as an inappropriate basis to have calculated the Claim constitute an improper "attempt to create feigned issues of fact designed to avoid the consequences of the earlier testimony" (Sunshine Care Corp. v. Warrick, 100 A.D.3d 981, 983 [2d Dept 2012] [rejecting affidavit "as an attempt to create feigned issues of fact designed to avoid the consequences of the earlier testimony"]; see also, Chrisman v. Syracuse Soma Project, 192 A.D.3d 1594, 1596 [4th Dept 2021] ["averments in the affidavit... which contradicted his deposition testimony, clearly constituted an attempt to avoid the consequences of [his] prior deposition testimony by raising feigned issues of fact, and was [thus] insufficient to avoid summary judgment"]). Whether the Measured Mile Approach is the correct manner in which to have calculated the Claim is irrelevant, because LPC directed Frey to adhere to the Measured Mile Approach, and parties are permitted to chart their own course (see Mitchell v. NY Hosp., 61 N.Y.2d 208, 214 [1984] ["unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course... [and] may fashion the basis upon which a particular controversy will be resolved... and in doing so they may stipulate away statutory, and even constitutional rights"] [internal punctuation and citations omitte