Opinion
12699 Index No. 302831/14 83935/15 Case No. 2019-04971
12-22-2020
Mario FRANCO, Plaintiff–Respondent, v. 1221 AVENUE HOLDINGS, LLC, et al., Defendants–Appellants, New York Plumbing Heating–Cooling Corp., Defendant. 1221 Ave Holdings, LLC, Third–Party Plaintiff, v. W5 Group LLC, Third–Party Defendant-Appellant, Firecraft of New York, Inc., Third–Party Defendant.
Wood, Smith, Henning & Berman LLP, New York (Kevin T. Fitzpatrick of counsel), for appellants. Rubin Law, PLLC, New York (Denise A. Rubin of counsel), and Keith D. Silverstein & Associates, P.C., New York (Keith D. Silverstein of counsel), for respondent.
Wood, Smith, Henning & Berman LLP, New York (Kevin T. Fitzpatrick of counsel), for appellants.
Rubin Law, PLLC, New York (Denise A. Rubin of counsel), and Keith D. Silverstein & Associates, P.C., New York (Keith D. Silverstein of counsel), for respondent.
Friedman, J.P., Renwick, Singh, Kennedy, Shulman, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about October 2, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment as to liability under Labor Law § 240(1), unanimously affirmed, without costs.
Plaintiff's testimony that he was injured during demolition work when an unsecured pipe fell from the ceiling and struck him, knocking him off a ladder, establishes prima facie that his injuries resulted "directly from the application of the force of gravity" and that, having failed to provide proper safety devices, defendants are liable for these injuries under Labor Law § 240(1) (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ; Kosavick v. Tishman Constr. Corp. of N.Y., 50 A.D.3d 287, 288, 855 N.Y.S.2d 433 [1st Dept. 2008] ; Boyle v. 42nd St. Dev. Project, Inc., 38 A.D.3d 404, 406, 835 N.Y.S.2d 7 [1st Dept. 2007] ). Contrary to defendants' contention, plaintiff was not required to show that the pipe was being hoisted or secured when it fell (see Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 866 N.Y.S.2d 592, 896 N.E.2d 75 [2008] ; Vargas v. City of New York, 59 A.D.3d 261, 873 N.Y.S.2d 295 [1st Dept. 2009] ).
In opposition, defendants failed to raise an issue of fact. Regardless of whether plaintiff was on a ladder as he testified, or standing on the floor as his foreman claimed, it is undisputed that he was struck by a pipe that fell from the ceiling and that he was not supplied with adequate protection from the resulting harm (see Arnaud v. 140 Edgecomb LLC, 83 A.D.3d 507, 508, 922 N.Y.S.2d 292 [1st Dept. 2011] ; Nascimento v. Bridgehampton Constr. Corp., 86 A.D.3d 189, 191, 924 N.Y.S.2d 353 [1st Dept. 2011] ).