Opinion
06-08-2017
Franklin GONZALEZ, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants, H.E.L.P.-Bronx, L.P., etc., et al., Defendants–Appellants.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellants. Ephrem J. Wertenteil, New York, for respondent.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellants.
Ephrem J. Wertenteil, New York, for respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered December 28, 2016, which, to the extent appealed from, denied defendants-appellants' motion for summary judgment dismissing the Labor Law § 240(1) claim as against them, and granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim, unanimously affirmed, without costs.
Whether or not the scaffold provided workers at the site with adequate protection for working at an elevation, the unsecured plank falling from the scaffold and striking plaintiff as the scaffold was being moved constituted a distinct elevation- related hazard requiring the securing of the plank for the purpose of moving the scaffold (see Castillo v. 62–25 30th Ave. Realty, LLC, 47 A.D.3d 865, 850 N.Y.S.2d 616 [2d Dept.2008], citing Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267–268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ; cf. Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 7 N.Y.S.3d 263, 30 N.E.3d 154 [2015] [slipping on ice and falling while using stilts not within ambit of Labor Law § 240(1) ] ). Plaintiff's employer's assertion that all his workers, including plaintiff, knew that a scaffold must be dismantled before being moved was unsupported by any evidence that plaintiff had ever been so instructed, and was therefore insufficient to raise a triable issue of fact whether he was the sole proximate cause of the accident (Gallagher v. New York Post, 14 N.Y.3d 83, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] ).
TOM, J.P., SWEENY, ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, JJ., concur.