Opinion
09-29-2016
Joseph McMANUS, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Appellant.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellant. Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for respondent.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellant.
Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 11, 2015, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of defendant's Labor Law § 240(1) liability, unanimously reversed, on the law, without costs, and plaintiff's motion denied.
Summary judgment on the Labor Law § 240(1) claim was inappropriate, because questions of fact exist concerning whether a scaffold purportedly covering the opening of the flocculation tank through which plaintiff fell was a proper and adequate safety device (see Ortega v. City of New York, 95 A.D.3d 125, 128, 940 N.Y.S.2d 636 [1st Dept.2012] ) and whether, if the scaffold was an adequate safety device, plaintiff removed the device by moving it away from the opening (see Boyd v. Schiavone Constr. Co., Inc., 106 A.D.3d 546, 548, 965 N.Y.S.2d 117 [1st Dept.2013] ).
MAZZARELLI, J.P., ACOSTA, SAXE, MOSKOWITZ, GESMER, JJ., concur.