Opinion
5523 Index 156327/13
01-25-2018
Frank GERICITANO, Plaintiff–Respondent, v. BROOKFIELD PROPERTIES OLP CO. LLCsued herein as Brookfield Office Properties, et al., Defendants–Appellants.
Camacho Mauro Mulholland, LLP, New York (Wendy Jennings of counsel), for appellants. Jonathan D'Agostino & Associates, P.C., Staten Island (Edward J. Pavia, Jr. of counsel), for respondent.
Camacho Mauro Mulholland, LLP, New York (Wendy Jennings of counsel), for appellants.
Jonathan D'Agostino & Associates, P.C., Staten Island (Edward J. Pavia, Jr. of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Tom, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered October 21, 2016, which granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff established prima facie his entitlement to the protections of Labor Law § 240(1) by submitting evidence that he was injured when a corner of an electrical transformer weighing hundreds of pounds and suspended from a ceiling shifted downward and struck him on the head as he was standing on a ladder working on it and that he had not been provided with any safety devices adequate to his task (see e.g. Rzymski v. Metropolitan Tower Life Ins. Co., 94 A.D.3d 629, 942 N.Y.S.2d 530 [1st Dept. 2012] ; Luongo v. City of New York, 72 A.D.3d 609, 899 N.Y.S.2d 235 [1st Dept. 2010] ; Kollbeck v. 417 FS Realty, 4 A.D.3d 314, 772 N.Y.S.2d 688 [1st Dept. 2004] ).
In opposition, defendants failed to raise an issue of fact as to their contention that plaintiff was the sole proximate cause of the accident. Plaintiff's coworker testified that there were no readily available safety devices to assist him and plaintiff in their task (see Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] ; Gonzalez v. City of New York, 151 A.D.3d 492, 493, 53 N.Y.S.3d 535 [1st Dept. 2017] ). While plaintiff's foreman testified that he had given specific instructions to his workers about using wooden delivery pallets to prop up the transformer at the corner being worked on, he conceded that he did not know whether plaintiff was standing near enough to him to have heard these instructions (see Anderson v. MSG Holdings, L.P., 146 A.D.3d 401, 404, 44 N.Y.S.3d 388 [1st Dept. 2017], lv dismissed 29 N.Y.3d 1100, 59 N.Y.S.3d 737, 81 N.E.3d 1217 [2017] ). In any event, defendants submitted no evidence that this improvised method was a suitable safety device (see Cordeiro v. TS Midtown Holdings, LLC, 87 A.D.3d 904, 905, 931 N.Y.S.2d 41 [2011] ).