Opinion
04-23-2024
Jonathan MATA, Plaintiff-Respondent, 371 1ST STREET, LLC, et al., Defendants-Appellants, Finean Engineering PC., Defendant.
Russo & Gould, LLP, New York (Alan Russo of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Russo & Gould, LLP, New York (Alan Russo of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent. Manzanet-Daniels, J.P., Kapnick, Kennedy, Higgitt, O’Neill Levy, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 26, 2023, which granted plaintiff’s motion for partial summary judgment on the Labor Law § 240(1) claim and denied defendants 371 1st Street, LLC, Stacey Shurgin, Stacey Shurgin d/b/a 371 1st Street LLC, Scott Shurgin, and Scott Shurgin d/b/a 371 1st Street LLC’s (collectively, defendants) motion for summary judgment dismissing plaintiff’s Labor Law §§ 240(1), 241(6), and 200 and common-law negligence claims, unanimously affirmed, without costs.
[1] The motion court properly found that summary judgment is warranted in favor of plaintiff, who was engaged in the demolition of flooring when the subfloor collapsed, causing him to fall several stories and onto a scaffold (see Kircher v. City of New York, 122 A.D.3d 486, 997 N.Y.S.2d 41 [1st Dept. 2014]). Even if, as urged by defendants, we considered the subfloor to be a permanent structure, in light of the condition of the building as depicted in photographs taken soon after the accident, and given that plaintiff was engaged in pulling up nailed boards from the subfloor using a crowbar, the accident was foreseeable (see Mena v. 485 Seventh Ave. Assoc. LLC, 199 A.D.3d 420, 421, 153 N.Y.S.3d 865 [1st Dept. 2021]; Giancola v. Yale Club of N.Y. City, 161 A.D.3d 695, 696, 78 N.Y.S.3d 71 [1st Dept. 2018]; Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 A.D.3d 494, 495, 980 N.Y.S.2d 6 [1st Dept. 2014]).
[2] Defendants’ expert’s opinion was based on photographs taken at some unspecified time prior to the accident, when the building did not resemble the condition that it was in when the accident occurred, and thus was insufficient to raise a question of fact (see Garcia, 113 A.D.3d at 496, 980 N.Y.S.2d 6). Nor does it inure to defendants’ benefit that there is no engineer’s report concerning the condition of the floor, particularly where defendants were cited by the New York City Department of Buildings for failure to file such a report in advance of commencing demolition.
In light of our determination on the Labor Law § 240(1) claim, defendants’ arguments regarding the Labor Law §§ 241(6) and 200 and common-law negligence claims are academic (see Harsanyi v. Extell 4110 LLC, 220 A.D.3d 528, 529, 198 N.Y.S.3d 37 [1st Dept. 2023]; Viruet v. Purvis Holdings LLC, 198 A.D.3d 587, 588–589, 156 N.Y.S.3d 25 [1st Dept. 2021]).