Opinion
5177 Index 21904/14E
12-12-2017
Avdyl BERISHA, Plaintiff–Appellant, v. 209–219 SULLIVAN STREET L.L.C., et al., Defendants–Respondents.
Morgan Levine Dolan, P.C., New York (Glenn P. Dolan of counsel), for appellant. Baxter Smith & Shapiro, P.C., Hicksville (Dennis S. Heffernan of counsel), for respondents.
Morgan Levine Dolan, P.C., New York (Glenn P. Dolan of counsel), for appellant.
Baxter Smith & Shapiro, P.C., Hicksville (Dennis S. Heffernan of counsel), for respondents.
Tom, J.P., Renwick, Gische, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 20, 2016, which, in this Labor Law action, denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff is entitled to summary judgment on the issue of defendants' section 240(1) liability where he was injured when the mobile scaffold upon which he was standing wobbled, causing him to fall to the ground. The record establishes that the scaffold had no railings to prevent the fall, there is no evidence that defendants provided an adequate safety device that plaintiff refused to use, and Labor Law § 240(1) imposes no obligation that he affirmatively request one (see e.g. Vergara v. SS 133 W. 21 LLC, 21 A.D.3d 279, 800 N.Y.S.2d 134 [1st Dept. 2005] ).
In view of the foregoing, the issue of Labor Law § 241(6) liability is academic (see Jerez v. Tishman Constr. Corp. of N.Y., 118 A.D.3d 617, 989 N.Y.S.2d 465 [1st Dept. 2014] ).