Opinion
17119 Index Nos. 150865/16 595676/17, 595871/19, 595006/20 Case No. 2021-03836
01-17-2023
Cristian SOTELO, Plaintiff–Appellant, v. TRM CONTRACTING, LP, et al., Defendants–Respondents. [And Third-Party Actions]
Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for appellant. Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel), for respondents.
Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for appellant.
Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel), for respondents.
Kapnick, J.P., Friedman, Kennedy, Mendez, Shulman, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about September 30, 2021, which, to the extent appealed from, denied plaintiff's motion for summary judgment on liability on his Labor Law claims, unanimously reversed, on the law, without costs, and plaintiff granted summary judgment on liability on his Labor Law § 240(1) claim.
Contrary to defendants’ contention, plaintiff's motion was not premature. Defendants failed to demonstrate that facts essential to justify opposition to plaintiff's motion were within the exclusive knowledge of plaintiff, the moving party (see CPLR 3212[f] ; Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP, 44 A.D.3d 557, 557, 843 N.Y.S.2d 630 [1st Dept. 2007] ). Defendants’ argument is also undermined by their own failure to use the time and the opportunity they had to obtain whatever third-party testimony they needed in order to oppose plaintiff's motion (see Greca v. Choice Assoc. LLC, 200 A.D.3d 415, 416, 154 N.Y.S.3d 780 [1st Dept. 2021] ).
The court should have granted plaintiff partial summary judgment on the Labor Law § 240(1) claim because there were no factual issues as to whether the ditch into which plaintiff allegedly fell actually existed at the time of the accident. Plaintiff testified that he fell into a ditch that was covered with a tarp-like material while on his way to the bathroom. The testimony of plaintiff's employer and defendants’ project manager, and the post-accident photos submitted by defendants did not adequately establish the absence of a ditch at the time of the accident and, therefore, were insufficient to raise a triable issue of fact.
Defendants also failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. Defendants contend that plaintiff chose to use a bathroom further away from his workstation and attempted to cross over the ditch without first inspecting the covering that had replaced the plank before stepping on it. However, these circumstances still demonstrate that plaintiff's accident was the result of the absence of a safety device, and raise only an issue as to plaintiff's comparative negligence, which is not a defense to a Labor Law § 240(1) claim (see Hewitt v. N.Y. 70th St. LLC, 187 A.D.3d 574, 575, 135 N.Y.S.3d 15 [1st Dept. 2020] ; Cevallos v. Morning Dun Realty, Corp., 78 A.D.3d 547, 548, 911 N.Y.S.2d 329 [1st Dept. 2010] ).
The fact that plaintiff was the only witness to his accident does not preclude summary judgment in his favor, as nothing in the record controverted his account of the accident or called into question his credibility (see Rroku v. West Rac Contr. Corp., 164 A.D.3d 1176, 1177, 82 N.Y.S.3d 709 [1st Dept. 2018] ).
In view of the foregoing, the issue of defendant's liability on plaintiff's other claims is academic (see Pimentel v. DE Frgt. LLC, 205 A.D.3d 591, 593, 169 N.Y.S.3d 286 [1st Dept. 2022] ; Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 12, 917 N.Y.S.2d 130 [1st Dept. 2011] ).