Opinion
6044 M–605 Index No. 155382/15
03-20-2018
Joseph HOBBS, et al., Plaintiffs–Appellants, v. MTA CAPITAL CONSTRUCTION, et al., Defendants–Respondents.
Foulke Law Firm, Goshen (Evan M. Foulke of counsel), for appellants. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for respondents.
Foulke Law Firm, Goshen (Evan M. Foulke of counsel), for appellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for respondents.
Friedman, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ.
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered March 28, 2017, which denied plaintiffs' motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiffs established entitlement to judgment as a matter of law on the issue of liability on the section 240(1) claim. The injured plaintiff testified that he fell from a fixed, job-made access ladder when the edge of the rung on which he was stepping suddenly splintered and he fell (see Lizama v. 1801 Univ. Assoc., LLC, 100 A.D.3d 497, 954 N.Y.S.2d 58 [1st Dept. 2012] ; Stallone v. Plaza Constr. Corp., 95 A.D.3d 633, 944 N.Y.S.2d 130 [1st Dept. 2012] ).
In opposition, defendants raised triable issues of fact through the affidavits of other workers on the site who stated that they observed the ladder after the accident and found that no rungs were damaged or broken. They also averred that, shortly after the accident, the injured plaintiff, inter alia, told them that he fell because his hand missed the handhold, causing him to lose his balance and fall. These conflicting accounts of how the accident occurred raise an issue of fact that precludes the granting of summary judgment.
Motion to strike reply brief and for related relief granted to the extent of striking the footnote on page 14 of the reply brief referring to facts dehors the record, and otherwise denied.