Opinion
12185 Index No. 303911/15 Case No. 2020-00068
10-27-2020
Francesco ROMANO, et al., Plaintiffs–Appellants, v. ONE CITY BLOCK LLC, et al., Defendants–Respondents.
Popkin & Popkin, LLP, New York (Eric F. Popkin of counsel), for appellants. Vigorito, Barker, Patterson, Nichols & Porter, LLP, Garden City (Megan A. Lawless of counsel), for respondents.
Popkin & Popkin, LLP, New York (Eric F. Popkin of counsel), for appellants.
Vigorito, Barker, Patterson, Nichols & Porter, LLP, Garden City (Megan A. Lawless of counsel), for respondents.
Kapnick, J.P., Webber, Gonza´lez, Shulman, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about October 7, 2019, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for partial summary judgment on the issue of liability as against defendants One City Block LLC and Benchmark Builders, Inc. on the Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiffs established prima facie entitlement to summary judgment with the testimony of plaintiff Francesco Romano that the unsecured ladder on which he was performing work shifted and moved, causing him to fall (see Fanning v. Rockefeller Univ., 106 A.D.3d 484, 484–485, 964 N.Y.S.2d 525 [1st Dept. 2013] ). Plaintiff's affidavit did not conflict with his deposition testimony regarding how the accident occurred.
However, the accident report, which was completed by plaintiff's foreman on the date of the accident and was based on the foreman's conversation with plaintiff right after the accident, states that "[w]hen coming down the ladder [plaintiff] slipped off of the step, falling to the ground." Plaintiff's account that the ladder shifted, causing him to fall, as he reached up for the conduit while standing on the fourth rung contradicts the accident report and the foreman's testimony. Because plaintiff could not have slipped off of the ladder while descending, and at the same time fallen from the fourth rung while performing work, issues of fact and credibility exist as to how the accident occurred (see Ellerbe v. Port Auth. of N.Y. & N.J., 91 A.D.3d 441, 442, 936 N.Y.S.2d 39 [1st Dept. 2012] ; compare Nolan v. Port Auth. of N.Y. & N.J., 162 A.D.3d 488, 78 N.Y.S.3d 333 [1st Dept. 2018] ).