Opinion
17131 Index No. 31852/19 Case No. 2022–01803
01-19-2023
Liborio GONCALVES, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Respondent.
Sakkas, Cahn & Weiss, LLP, New York (Matthew Sakkas of counsel), for appellant. Pisciotti Lallis Erdreich, White Plains (Jie Shi Chen of counsel), for respondent.
Sakkas, Cahn & Weiss, LLP, New York (Matthew Sakkas of counsel), for appellant.
Pisciotti Lallis Erdreich, White Plains (Jie Shi Chen of counsel), for respondent.
Renwick, J.P., Webber, Moulton, Gonza´lez, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 7, 2022, which denied plaintiff's motion for partial summary judgment on the issue of Labor Law § 240(1) liability, unanimously affirmed, without costs.
The court properly denied plaintiff's motion for partial summary judgment because he failed to meet his prima facie burden of establishing that the alleged incident was the type of gravity-related event contemplated by Labor Law § 240(1) (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991] ; see also Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ; Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 915–916, 690 N.Y.S.2d 852, 712 N.E.2d 1219 [1999] ). Plaintiff's testimony also raises issues of fact whether his own actions were the sole proximate cause of his injury (see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ; see also Blake v. Neighborhood Hous. Servs. of N.Y. City., Inc., 1 N.Y.3d 280, 290–291, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ; Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709 [1998] ).
Furthermore, no discovery has occurred, and plaintiff's motion was based on his General Municipal Law § 50–h transcript, in which he admitted that he did not see what caused the pipe to start rolling (see Colon v. Martin, 35 N.Y.3d 75, 79–80, 125 N.Y.S.3d 346, 149 N.E.3d 39 [2020] ), and thus summary judgment was properly denied at this early stage.