Opinion
2021-06093 Index 150704/15
11-09-2021
James McEachern et al., Plaintiffs-Appellants, v. Extell Development Company et al., Defendants-Respondents. Appeal No. 14583 No. 2020-02678
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellants. Malapero Prisco & Klauber LLP, New York (Stephanie Tebbett of counsel), for respondents.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellants.
Malapero Prisco & Klauber LLP, New York (Stephanie Tebbett of counsel), for respondents.
Before: Manzanet-Daniels, J.P., Oing, Moulton, Scarpulla, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered May 11, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiffs' cross motion for summary judgment as to liability on the Labor Law § 240(1) claim against defendants Tishman Construction Corporation and Extell Development Company, unanimously modified, on the law, to grant plaintiffs' motion as to Tishman, and otherwise affirmed, without costs.
Plaintiff James McEachern (plaintiff) was injured when he attempted to gain access to the interior of a fuel tank room in a building under construction by stepping on an oil barrel to descend the four-foot distance between a hatch door and the floor of the room.
Plaintiffs made a prima facie showing that defendants did not provide adequate safety devices for gaining access to the fuel tank room, and in opposition defendants failed to raise an issue of fact. Because no safety devices were available to plaintiff for gaining access to the room, his attempt to use the oil barrel cannot be the sole proximate cause of his accident (see Ferguson v Durst Pyramid, LLC, 178 A.D.3d 634 [1st Dept 2019]; Vargara v SS 133 W. 21, LLC, 21 A.D.3d 279 [1st Dept 2005]). Plaintiff did not have an obligation to affirmatively request an adequate safety device (see Berisha v 209-219 Sullivan St. L.L.C., 156 A.D.3d 457 [1st Dept 2017]).
An issue of fact exists as to whether defendant Extell Development Company was an owner of the premises, since the Construction Management Agreement listed it along with another entity as owners.