Opinion
14094 Index No. 303466/16 Case No. 2021-00659
06-17-2021
Gregorio SANCHEZ, Plaintiff–Respondent, v. 1 BURGESS ROAD, LLC, Defendant–Appellant.
Harrington, Ocko & Monk, LLP, White Plains (Adam G. Greenberg of counsel), for appellant. Gorayeb & Associates, P.C., New York (Martin J. Moskowitz of counsel), for respondent.
Harrington, Ocko & Monk, LLP, White Plains (Adam G. Greenberg of counsel), for appellant.
Gorayeb & Associates, P.C., New York (Martin J. Moskowitz of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Gonza´lez, Shulman, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered November 20, 2020, which granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff's testimony that he fell 20 feet to the ground when scaffold planks on which he was working broke or came loose showed prima facie that his injuries were proximately caused by a violation of Labor Law § 240(1) (see Jerdonek v. 41 W. 42 LLC, 143 A.D.3d 43, 45, 36 N.Y.S.3d 17 [1st Dept. 2016] ). Whether he fell about 6, 8, or 20 feet, or whether he fell directly through the middle of the scaffold is not dispositive, since the statute was violated under any version of the accident (see id. ; Ordonez v. One City Block, LLC, 191 A.D.3d 412, 414, 137 N.Y.S.3d 693 [1st Dept. 2021] ). Nor does "[a] lack of certainty as to exactly what preceded plaintiff's fall" raise issues of fact ( Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 280, 800 N.Y.S.2d 134 [1st Dept. 2005] ; see Ajche v. Park Ave. Plaza Owner, LLC, 171 A.D.3d 411, 413, 98 N.Y.S.3d 13 [1st Dept. 2019] ). Plaintiff was not required to demonstrate a specific defect in the scaffold, and it is not dispositive that the scaffold had recently been used without incident (see Martinez v. ST–DIL LLC, 192 A.D.3d 511, 512–513, 144 N.Y.S.3d 687 [1st Dept. 2021] ; Kind v. 1177 Ave. of the Ams. Acquisitions, LLC, 168 A.D.3d 408, 91 N.Y.S.3d 394 [1st Dept. 2019] ). Even if plaintiff improperly removed nails from scaffold planks while kneeling on them in an attempt to perform his assigned task of raising the planks, this was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim (see Ordonez, 191 A.D.3d at 413, 137 N.Y.S.3d 693 ).
The pre-care medical report by a paramedic setting forth a statement by plaintiff as to how the accident occurred is inadmissible, since defendant failed to show "that the translation was provided by a competent, objective interpreter whose translation was accurate" ( Nava–Juarez v. Mosholu Fieldston Realty, LLC, 167 A.D.3d 511, 512, 91 N.Y.S.3d 373 [1st Dept. 2018] [internal quotation marks omitted]), and failed "to demonstrate acceptable excuse for [its] failure to meet the strict requirement of tender in admissible form" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).