Opinion
5411 Index 308884/11
01-09-2018
Pedro SERRANO, et al., Plaintiffs–Appellants–Respondents, v. TED GENERAL CONTRACTOR, Defendant–Respondent–Appellant, Eight Avenue Sky, LLC, Defendant–Respondent, Perimeter Bridge and Scaffold Co., Inc., et al., Defendants.
Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for appellants-respondents. Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for respondent-appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Gail L. Ritzert of counsel), for respondent.
Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for appellants-respondents.
Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for respondent-appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Gail L. Ritzert of counsel), for respondent.
Tom, J.P., Kapnick, Webber, Oing, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered November 17, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for partial summary judgment on the issue of defendants Eighth Avenue Sky's (EAS) and TED General Contractor's (TED) Labor Law 240(1) liability, unanimously reversed, on the law, without costs, and the motion granted. Cross appeal by TED from so much of the order as made certain findings as to it, unanimously dismissed, without costs.
Plaintiff Pedro Serrano was injured when, during the course of moving sheetrock into a building, he stood on top of a sidewalk shed that broke beneath him, causing him to fall to the sidewalk below. While the motion court correctly determined that these facts demonstrated plaintiffs' prima facie entitlement to summary judgment (see e.g. Tzic v. Kasampas, 93 A.D.3d 438, 438–439, 940 N.Y.S.2d 218 [1st Dept. 2012] ), it erred in finding that EAS raised a triable issue of fact. That no witness other than plaintiff testified as to the occurrence of the accident does not bar judgment in his favor, "where nothing in the record contradicts his version of the occurrence or raises an issue as to his credibility" ( Ortiz v. Burke Ave. Realty, Inc., 126 A.D.3d 577, 578, 3 N.Y.S.3d 582 [1st Dept. 2015] ), and defendant EAS's expert report was purely speculative in that it was not based on an examination of the sidewalk shed at the time of the accident ( Pastabar Café Corp. v. 343 E. 8th St. Assoc., LLC, 147 A.D.3d 583, 585, 47 N.Y.S.3d 305 [1st Dept. 2017] ).The motion court properly found that TED was the general contractor of the project given that the evidence clearly demonstrated that it had authority to control the work ( DeMaria v. RBNB 20 Owner, 129 A.D.3d 623, 624–625, 12 N.Y.S.3d 79 [1st Dept. 2015] ), and that plaintiff was found to be a worker protected under the statute because he was making deliveries of construction materials to the worksite during an ongoing construction project ( Serowik v. Leardon Boiler Works, Inc., 129 A.D.3d 471, 11 N.Y.S.3d 128 [1st Dept. 2015] ).
We have considered the parties' remaining arguments and find them unavailing.