Opinion
14636-14636A Index No. 24708/15E Case No. 2020–02635
11-18-2021
Shane HOVORKA, Plaintiff–Respondent, v. APPLIED PRODUCTS COMPANY, INC., et al., Defendants–Appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for appellants. Scaffidi & Associates, New York (James F. Scaffidi of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for appellants.
Scaffidi & Associates, New York (James F. Scaffidi of counsel), for respondent.
Webber, J.P., Kern, Gonza´lez, Mendez, Shulman, JJ.
Judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered November 25, 2019, in favor of plaintiff as to liability on the Labor Law § 240(1) claim, and order, same court and Justice, entered July 13, 2020, to the extent that, upon reargument of plaintiff's motion for summary judgment as to the Labor Law § 240(1) claim, it adhered to the prior determination, unanimously affirmed, without costs.
Supreme Court properly granted plaintiff summary judgment on his Labor Law § 240(1) claim because plaintiff has shown that he fell while walking along an elevated retaining wall to access a job site. This activity presents the type of elevation related risk contemplated by the statute, which could have been mitigated by providing the type of protective devices listed in § 240(1) (see Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 9, 917 N.Y.S.2d 130 [1st Dept. 2011] ; see also DeFreitas v. Penta Painting & Decorating Corp., 146 A.D.3d 573, 45 N.Y.S.3d 83 [1st Dept. 2017] ; Arrasti v. HRH Constr. LLC, 60 A.D.3d 582, 876 N.Y.S.2d 373 [1st Dept. 2009] ).
In response, defendants failed to raise an issue of fact sufficient to defeat plaintiff's motion. Defendants’ assertion that the presence of ice removed plaintiff's fall from the scope of Labor Law § 240(1) is without merit because the statute applies to situations where a slippery surface combined with an elevation hazard proximately causes a plaintiff's injury (see Landi v. SDS William St., LLC, 146 A.D.3d 33, 42 N.Y.S.3d 164 [1st Dept. 2016] ). Defendants’ argument that plaintiff is the sole proximate cause of the accident is also without merit. Plaintiff, an ironworker, was not responsible for removing the snow and debris that predated the project that would enable him to traverse the hillside instead of the wall. We need not consider plaintiff's remaining claims involving Labor Law §§ 241(6) and 200.