Latteri v. Port of Auth. of N.Y. & N.J.

205 A.D.3d 546

166 N.Y.S.3d 529 (Mem)

William LATTERI, Plaintiff–Respondent,

v.The PORT OF AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant–Appellant.

15973

Index No. 33226/18E

Case No. 2021–03756

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

ENTERED May 19, 2022

McGivney Kluger Clark & Intoccia, P.C., New York (Mindy Kallus of counsel), for appellant.

Michael H. Zhu, PC, New York (Michael H. Zhu of counsel), for respondent.

Manzanet–Daniels, J.P., Gische, Kern, Friedman, Shulman, JJ.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about June 10, 2021, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, and denied defendant's motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, unanimously affirmed, without costs.

Plaintiff mechanical technician used an enclosed crawl space ramp located beneath an AirTrain station escalator to reach an upper area of the escalator that needed repair. After plaintiff diagnosed the problem and walked back down the 15–foot underside ramp, which paralleled the slope of the escalator steps above, he slipped, and to avoid a fall from a height, grabbed an overhead metal truss, which act caused injury to his shoulder. The internal ramp lacked side rails for support. Based on this evidence, plaintiff established a prima facie claim under Labor Law § 240(1) (see generally Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267–268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ).

Defendant's argument that plaintiff's actions, including his decision not to wear a harness issued by his employer, were the sole proximate cause of his injury is unavailing. Defendant offered no evidence that tie off locations were available to utilize a harness where plaintiff was working, that it would have protected him from injury, that plaintiff knew he was supposed to use a harness when climbing the ramp, or that he disregarded specific instructions to wear a harness (see Kehoe v. 61 Broadway Owner LLC, 186 A.D.3d 1143, 1144, 130 N.Y.S.3d 451 [1st Dept. 2020], lv dismissed 36 N.Y.3d 959, 137 N.Y.S.3d 290, 161 N.E.3d 478 [2021] ). The evidence shows that the internal sloped ramp plaintiff used to reach the mechanical parts of the escalator failed to provide proper protection and was poorly lit, and plaintiff's failure to use a harness amounts at most to...