Opinion
6861 Index 156922/15
06-14-2018
Benjamin CONCEPCION, Plaintiff–Respondent, v. 333 SEVENTH LLC, Defendant–Appellant.
Cartafalsa, Turpin & Lenoff, New York (Carolyn Comparato of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Cartafalsa, Turpin & Lenoff, New York (Carolyn Comparato of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Tom, Mazzarelli, Moulton, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 27, 2017, which, inter alia, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, and denied defendant's cross motion for summary judgment dismissing the Labor Law § 240(1) claim, unanimously affirmed, with costs.
Partial summary judgment on the issue of liability was properly granted in favor of plaintiff in this action where plaintiff was injured when he fell from a six-foot A-frame ladder
while performing work on the sprinkler system in defendant's building (see e.g. Plywacz v. 85 Broad St. LLC, 159 A.D.3d 543, 72 N.Y.S.3d 80 [1s Dept. 2018] ). According to plaintiff, as he was tightening a bolt, the ladder moved and he fell to the floor. Contrary to defendant's contention, the record shows that the work that plaintiff was engaged in at the time of his accident constituted an alteration within the meaning of section 240(1). Such work included reconfiguring the premises' sprinkler system to comply with the fire code and entailed, inter alia, cutting and removing pipes, relocating pipes and valves, and installing components (see Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998] ; Wade v. Atlantic Cooling Tower Servs., Inc., 56 A.D.3d 547, 548–549, 867 N.Y.S.2d 489 [2d Dept. 2008] ; see also Golubowski v. City of New York, 131 A.D.3d 900, 17 N.Y.S.3d 110 [1st Dept. 2015] ).
That plaintiff is the sole witness to the accident does not preclude summary judgment in his favor where nothing in the record contradicts his account or raises an issue of fact as to his credibility (see Ortiz v. Burke Ave. Realty, Inc., 126 A.D.3d 577, 578, 3 N.Y.S.3d 582 [1st Dept. 2015] ). Furthermore, any failure on plaintiff's part to ensure that his coworker had properly set up the ladder would, at most, constitute comparative negligence, a defense inapplicable to a Labor Law § 240(1) cause of action (see Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402, 403, 963 N.Y.S.2d 14 [1st Dept. 2013] ).