Opinion
2014-06-24
Felipe ORTEGA–ESTRADA, Plaintiff–Respondent, v. 215–219 WEST 145TH STREET LLC, et al., Defendants–Appellants.
Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants. Pollack, Pollack, Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants. Pollack, Pollack, Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered on or about March 26, 2013, which granted plaintiff's motion for partial summary judgment on the issue of liability on his claim pursuant to Labor Law § 241(6), and denied defendants' cross motion for summary judgment dismissing the Labor Law § 200 and common-lawnegligence causes of action, unanimously affirmed, without costs.
Plaintiff established entitlement to judgment as a matter of law on the issue of liability in this action where he alleges that he was injured while using a table saw that was not equipped with a blade guard or spreader ( see 12 NYCRR 23–1.12[c][2], [3] ). That plaintiff was the sole witness to the accident does not warrant a different determination ( see De Oleo v. Charis Christian Ministries, Inc., 106 A.D.3d 521, 966 N.Y.S.2d 375 [1st Dept.2013];see also Noble v. 260–261 Madison Ave., LLC, 100 A.D.3d 543, 544–545, 954 N.Y.S.2d 518 [1st Dept.2012] ).
In opposition, defendants failed to raise an issue of fact. Defendants' challenges to plaintiff's credibility are unpersuasive and although comparative negligence is a viable defense to a Labor Law § 241(6) claim, no evidence of culpable conduct on the part of plaintiff was presented by defendants ( see Once v. Service Ctr. of N.Y., 96 A.D.3d 483, 947 N.Y.S.2d 4 [1st Dept.2012],lv. dismissed 20 N.Y.3d 1075, 963 N.Y.S.2d 620, 986 N.E.2d 438 [2013] ).
In view of the grant of summary judgment to plaintiff on the issue of liability on the § 241(6) claim, defendants' contentions regarding the Labor Law § 200 and common-law negligence claims are academic ( see Fanning v. Rockefeller Univ., 106 A.D.3d 484, 964 N.Y.S.2d 525 [1st Dept.2013] ). TOM, J.P., MOSKOWITZ, MANZANET–DANIELS, FEINMAN, GISCHE, JJ., concur.