Opinion
No. 2319 Index No. 28573/17 Case No. 2023-01686
05-21-2024
Joel De Los Santos, Respondent, v. Carlyle House Inc., Appellant, Hotel Carlyle Owners Corporation et al., Defendants. (And a Third-Party Action.)
Coffey Modica LLP, White Plains (Ross S. Wagner of counsel), for appellant. Pollack, Pollack, Isaac & Decicco, LLP, New York (Jillian Rosen of counsel), for respondent.
Coffey Modica LLP, White Plains (Ross S. Wagner of counsel), for appellant.
Pollack, Pollack, Isaac & Decicco, LLP, New York (Jillian Rosen of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Moulton, Mendez, Rosado, O'Neill Levy, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 9, 2023, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and so much of the § 241(6) claim as predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(d) as against defendant Carlyle House Inc., unanimously affirmed, without costs.
Plaintiff met his prima facie burden on his Labor Law § 240(1) claim through his testimony that he was working on a motorized scaffold that stopped and misleveled while descending, causing plaintiff to slip on leaking motor oil and fall one and a half stories to the sidewalk bridge below (see Corleto v Henry Restoration Ltd., 206 A.D.3d 525, 526 [1st Dept 2022]). These facts also meet plaintiff's prima facie burden under Labor Law § 241(6) and 12 NYCRR 23-1.7(d). That Industrial Code Section provides in relevant part that "[e]mployers shall not suffer or permit any employee to use a... scaffold, platform or other elevated working surface which is in a slippery condition."
Defendant failed to meet its burden of raising triable issues of fact by relying on testimony and statements of persons who did not witness the accident. Plaintiff's testimony that he was working with a certain coworker on the day of the accident, which conflicts with the coworker's testimony that he was not working for plaintiff's employer on that day, is a minor discrepancy given that plaintiff worked with a number of different coworkers over a period of months (see Klein v City of New York, 222 A.D.2d 351, 352 [1st Dept 1995], affd 89 N.Y.2d 833 [1996]). That plaintiff was the sole known witness did not defeat his entitlement to summary judgment (see Melendez v 1595 Broadway LLC, 214 A.D.3d 600, 601 [1st Dept 2023]; Klein, 222 A.D.3d at 352).
The court providently exercised its discretion in disregarding the affidavit of plaintiff's foreman, which was notarized outside New York State and unaccompanied by a certificate of conformity as required by CPLR 2309(c) (see Attilio v Torres, 181 A.D.3d 460, 461 [1st Dept 2020]). Even if the affidavit were considered, the foreman did not witness the accident or have personal knowledge of any facts sufficient to rebut plaintiff's prima facie showing (see Marrero v 2075 Holding Co. LLC, 106 A.D.3d 408, 409 [1st Dept 2013]).