Opinion
16433 112185/11.
12-17-2015
Devi KRISTO, Plaintiff–Appellant, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, et al., Defendants–Respondents, Kafka Construction, LLC, Defendant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Cozen O'Connor, New York (Michael Morris of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Cozen O'Connor, New York (Michael Morris of counsel), for respondents.
Opinion
Order, Supreme Court, New York County (Louis B. York, J.), entered July 7, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment as to liability on his Labor Law §§ 240(1) and 241(6) claims, and granted defendants-respondents' (defendants) cross motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, unanimously reversed, on the law, without costs, plaintiff's motion granted, and defendants' cross motion denied.
Plaintiff is entitled to summary judgment on the issue of liability on his Labor Law § 240(1) claim, since his deposition testimony establishes that a proximate cause of his injury was the unsecured scaffold planks, which shifted when he stepped on the platform because three of the required planks were missing (see Ciardiello v. Benenson Capital Co., 273 A.D.2d 147, 710 N.Y.S.2d 894 1st Dept.2000 ). Thus, contrary to defendants' contention, plaintiff was not the sole proximate cause of his accident (see Kielar v. Metropolitan Museum of Art, 55 A.D.3d 456, 458, 866 N.Y.S.2d 629 1st Dept.2008 ). Further, defendants' recalcitrant worker defense, predicated on plaintiff's alleged entry into an area of the scaffold that had been cordoned off, is unavailing, as there is no evidence that plaintiff had been instructed on the day of the accident not to enter or use the cordoned-off area (see Olszewski v. Park Terrace Gardens, 306 A.D.2d 128, 128–129, 763 N.Y.S.2d 246 1st Dept.2003, lv. dismissed 1 N.Y.3d 622, 777 N.Y.S.2d 21, 808 N.E.2d 1280 2004 ).
The unsworn accident report relied upon by defendants to show an inconsistency in plaintiff's account of the accident is insufficient to raise an issue of fact (see Perez v. Brux Cab Corp., 251 A.D.2d 157, 159, 674 N.Y.S.2d 343 1st Dept.1998 ). The report is inadmissible hearsay (id.), and defendants provide no excuse for their failure to tender the report in admissible form (Allstate Ins. Co. v. Keil, 268 A.D.2d 545, 545–546, 702 N.Y.S.2d 619 2d Dept.2000 ). The inconsistent statement in plaintiff's hospital record as to how the accident occurred is also insufficient to raise a triable issue of fact, because it is not germane to plaintiff's diagnosis and treatment (see Sermos v. Gruppuso, 95 A.D.3d 985, 986–987, 944 N.Y.S.2d 245 2d Dept.2012 ).
Given the foregoing determination, we need not address plaintiff's remaining claims (Jerez v. Tishman Constr. Corp. of N.Y., 118 A.D.3d 617, 617, 989 N.Y.S.2d 465 1st Dept.2014; Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 12, 917 N.Y.S.2d 130 1st Dept.2011 ). In any event, the court erred in denying plaintiff summary judgment on his Labor Law § 241(6) claim predicated on defendants' violation of 12 NYCRR 23–5.1(e)(1), which requires scaffold planks to be “laid tight” (Susko v. 337 Greenwich LLC, 103 A.D.3d 434, 436, 961 N.Y.S.2d 35 1st Dept.2013 ). In addition, the court erred in granting defendants summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, since issues of fact exist regarding whether defendants created or had constructive notice of the scaffold's defective condition (see Hernandez v. Argo Corp., 95 A.D.3d 782, 783, 945 N.Y.S.2d 662 1st Dept.2012 ), and whether they exercised supervisory control over the erection and placement of the scaffold (see Alomia v. New York City Tr. Auth., 292 A.D.2d 403, 405, 738 N.Y.S.2d 695 2d Dept.2002 ).