Summary
in Celaj v. Cornell, 144 A.D.3d 590, 42 N.Y.S.3d 25 (1st Dept. 2016), plaintiff made a prima facie showing of entitlement to summary judgment as a matter of law on the Labor Law Sec. 240(1) claim by presenting undisputed evidence that he "fell off a scaffold without guardrails that would have prevented his fall."
Summary of this case from Baltazar v. Sullivan Farms, II, Inc.Opinion
11-29-2016
Veton CELAJ, Plaintiff–Respondent, v. Henry CORNELL, Defendant, SMI Construction Management, Inc., Defendant–Appellant.
Carol R. Finocchio, New York, for appellant. The Dauti Law Firm, P.C., New York (Ylber Albert Dauti of counsel), for respondent.
Carol R. Finocchio, New York, for appellant.
The Dauti Law Firm, P.C., New York (Ylber Albert Dauti of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, RICHTER, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered April 21, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims as against defendant SMI Construction Management, Inc., unanimously affirmed, without costs.
Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim by presenting undisputed evidence that he “fell off a scaffold without guardrails that would have prevented his fall” (Crespo v. Triad, Inc., 294 A.D.2d 145, 146, 742 N.Y.S.2d 25 [1st Dept.2002] ; accord Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 800 N.Y.S.2d 134 [1st Dept.2005] ). Plaintiff's alleged “failure to use the locking wheel devices and his movement of the scaffold while standing on it” were at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim (Crespo, 294 A.D.2d at 147, 742 N.Y.S.2d 25 ; see Vergara, 21 A.D.3d at 280, 800 N.Y.S.2d 134 ; cf. Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] [affirming finding that plaintiff was sole proximate cause of accident where he failed to use properly the proper protection afforded him] ).
Contrary to defendant's argument, the record does not contain any admissible evidence that safety railings were provided. The construction manager's affidavit raises only a feigned issue of fact since it contradicts his earlier deposition testimony (see Mermelstein v. East Winds Co., 136 A.D.3d 505, 24 N.Y.S.3d 643 [1st Dept.2016] ).Nor do any inconsistencies in plaintiff's accounts of the accident raise issues of fact, because in any event he was not afforded proper protection (see Lipari v. AT Spring, LLC, 92 A.D.3d 502, 504, 938 N.Y.S.2d 303 [1st Dept.2012] ; Vergara, 21 A.D.3d at 280, 800 N.Y.S.2d 134 ).
Defendant's expert's opinion that the lack of safety railings accorded with industry customs and regulations is irrelevant under Labor Law § 240(1) (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985] ; see also Bonaerge v. Leighton House Condominium, 134 A.D.3d 648, 649, 22 N.Y.S.3d 52 [1st Dept.2015] ).
The motion court also properly refused to dismiss plaintiff's Labor Law § 241(6) claim insofar as it is predicated on Industrial Code (12 NYCRR)§ 23–5.18(b), which requires safety rails on manually propelled scaffolds without regard to the height of the scaffold (Vergara, 21 A.D.3d at 280–281, 800 N.Y.S.2d 134 ).