Opinion
7152 Index 300351/15
09-27-2018
Gjovan RROKU, Plaintiff–Respondent, v. WEST RAC CONTRACTING CORP., et al., Defendants–Appellants.
Kennedys CMK LLP, New York (Michael Schneider of counsel), for appellants. Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Kennedys CMK LLP, New York (Michael Schneider of counsel), for appellants.
Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Renwick, J.P., Gische, Mazzarelli, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about August 17, 2017, which granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants' cross motion for summary judgment dismissing that claim, unanimously affirmed, without costs.
Plaintiff's testimony that, as he was climbing down a six-foot scaffold, the scaffold wobbled, causing him to fall to the floor, establishes prima facie defendants' liability under Labor Law § 240(1) (see Gonzalez v. 1225 Ogden Deli Grocery Corp., 158 A.D.3d 582, 583, 71 N.Y.S.3d 473 [1st Dept. 2018] ; Alvarez v. 1407 Broadway Real Estate LLC, 80 A.D.3d 524, 915 N.Y.S.2d 263 [1st Dept. 2011] ). Plaintiff satisfied his burden of demonstrating that defendants failed to provide adequate safety devices to prevent him from falling when the scaffold moved (see McCarthy v. Turner Constr., Inc. , 52 A.D.3d 333, 334, 859 N.Y.S.2d 648 [1st Dept. 2008] ). The fact that plaintiff was the only witness to his accident does not preclude summary judgment in his favor, since nothing in the record controverts his account of the accident or calls his credibility into question ( Ortiz v. Burke Ave. Realty, Inc., 126 A.D.3d 577, 578, 3 N.Y.S.3d 582 [1st Dept. 2015] ).
Defendants failed to raise an issue of fact in opposition, relying solely on hearsay statements in the accident report and the speculative opinion of their expert (see 76th & Broadway Owner LLC v. Consolidated Edison Co. of N.Y. Inc., 160 A.D.3d 447, 74 N.Y.S.3d 527 [1st Dept. 2018] ; Gonzalez, 158 A.D.3d at 583–584, 71 N.Y.S.3d 473 ). For the same reason, defendants failed to establish prima facie their freedom from liability.