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Pena v. Jane H. Goldman Residuary Trust No. 1

Supreme Court, Appellate Division, First Department, New York.
Feb 22, 2018
158 A.D.3d 565 (N.Y. App. Div. 2018)

Opinion

5791 Index 301044/15

02-22-2018

Juan PENA, Plaintiff–Respondent, v. The JANE H. GOLDMAN RESIDUARY TRUST NUMBER 1, et al., Defendants–Appellants, Century Management Services Inc., et al., Defendants.

Brody, O'Connor & O'Connor, New York (Scott A. Brody of counsel), for appellants. Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondent.


Brody, O'Connor & O'Connor, New York (Scott A. Brody of counsel), for appellants.

Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondent.

Tom, J.P., Kapnick, Webber, Oing, JJ.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 9, 2016, which, inter alia, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action as against defendant Sol Goldman Investments, LLC (SGI), unanimously affirmed, without costs.

Plaintiff established entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) cause of action as against SGI. Plaintiff submitted his deposition testimony, which showed that he was injured when the unsecured and damaged ladder upon which he was working wobbled, causing him to fall (see Goreczny v. 16 Ct. St. Owner LLC, 110 A.D.3d 465, 973 N.Y.S.2d 54 [1st Dept. 2013] ).

SGI's opposition failed to raise a triable issue of fact. Its submission of an ambiguous affidavit from plaintiff's supervisor was insufficient to rebut plaintiff's prima facie showing. Notably, the supervisor did not address the fact that he was at the scene of the accident shortly after plaintiff fell, and provided only vague references to other available ladders, without addressing plaintiff's testimony that other workers were using those ladders (see Gallagher v. New York Post, 14 N.Y.3d 83, 88–89, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] ; see also Rivera v. Dafna Constr. Co., Ltd., 27 A.D.3d 545, 545–546, 813 N.Y.S.2d 109 [2d Dept. 2006] ). Furthermore, SGI's argument that questions of fact exist as to whether plaintiff was the sole proximate cause of his accident is unavailing given that SGI failed to make a showing that adequate safety devices were provided to plaintiff (see Rice v. West 37th Group, LLC, 78 A.D.3d 492, 913 N.Y.S.2d 13 [1st Dept. 2010] ).

We have considered SGI's remaining contentions and find them unavailing.


Summaries of

Pena v. Jane H. Goldman Residuary Trust No. 1

Supreme Court, Appellate Division, First Department, New York.
Feb 22, 2018
158 A.D.3d 565 (N.Y. App. Div. 2018)
Case details for

Pena v. Jane H. Goldman Residuary Trust No. 1

Case Details

Full title:Juan PENA, Plaintiff–Respondent, v. The JANE H. GOLDMAN RESIDUARY TRUST…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Feb 22, 2018

Citations

158 A.D.3d 565 (N.Y. App. Div. 2018)
2018 N.Y. Slip Op. 1255
71 N.Y.S.3d 58

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