Jurski v. City of N.Y.

204 A.D.3d 983

165 N.Y.S.3d 371 (Mem)

Andrezj JURSKI, respondent,

v.CITY OF NEW YORK, et al., appellants.

2019–07626

Index No. 701657/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 25, 2021

April 27, 2022

Fabiani Cohen & Hall, LLP, New York, NY (Kevin B. Pollak of counsel), for appellants.

The Platta Law Firm, PLLC, New York, NY (Laurence D. Rogers of counsel), for respondent.

MARK C. DILLON, J.P., BETSY BARROS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered May 9, 2019. The order granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) is denied.

On March 24, 2016, the plaintiff, a roofer employed by nonparty Kel–Tech Construction, allegedly sustained injuries when he fell from an extension ladder at a public high school in Queens, while renovating a bulkhead on the roof thereof. In August 2016, the plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging, inter alia, a violation of Labor Law § 240(1). After discovery was completed, the plaintiff moved for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. The Supreme Court granted the motion, and the defendants appeal.

The plaintiff established, prima facie, the defendants’ liability under Labor Law § 240(1) by submitting, among other things, the transcripts of his General Municipal Law § 50–h hearing testimony and his deposition testimony. These evidentiary submissions demonstrated that the plaintiff was provided with an extension ladder that was secured only on the right side and, as he began to descend the ladder from the roof of the bulkhead to the roof of the school, the ladder shifted to the right and backwards, causing him to fall approximately 12 to 13 feet onto the roof of the school (see Cano v. Mid–Valley Oil Co., Inc., 151 A.D.3d 685, 689, 57 N.Y.S.3d 494 ; Alvarez v. Vingsan L.P., 150 A.D.3d 1177, 1179, 57 N.Y.S.3d 160 ; Assevero v. Hamilton & Church Props., LLC, 131 A.D.3d 553, 557, 15 N.Y.S.3d 399 ; Grant v. City of New York, 109 A.D.3d 961, 962, 972 N.Y.S.2d 86 ; Boe v. Gammarati, 26 A.D.3d 351, 809 N.Y.S.2d 550 ).

In opposition, however, the defendants raised a triable issue of fact as to whether the ladder shifted to the right and backwards, as the plaintiff testified, or whether the plaintiff's own actions were the sole proximate cause of the subject accident. The defendants submitted an affidavit from the...