Opinion
12498 Index No. 22612/16E Case No. 2019-04167
12-01-2020
Adan R. VALDEZ, Plaintiff–Respondent, v. The CITY OF NEW YORK et al., Defendants–Appellants.
Cozen O'Connor, New York (Jacqueline Pena of counsel), for appellants. The Weinstein Law Group, PLLC, New York (Steven M. Weinstein of counsel), for respondent.
Cozen O'Connor, New York (Jacqueline Pena of counsel), for appellants.
The Weinstein Law Group, PLLC, New York (Steven M. Weinstein of counsel), for respondent.
Gische, J.P., Webber, Oing, Mendez, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about September 11, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff testified that he was injured while pointing bricks at defendants' school when the inverted milk crate on which he was standing atop planks of a scaffold shifted unexpectedly, causing him to fall backward and strike his head on a bar of the scaffold. This testimony establishes prima facie that plaintiff's pointing work exposed him to an elevation-related risk against which defendants failed to provide him with proper protection, as required by Labor Law § 240(1) (see Ferguson v. Durst Pyramid, LLC , 178 A.D.3d 634, 117 N.Y.S.3d 12 [1st Dept. 2019] ; Mutadir v. 80–90 Maiden Lane Del LLC , 110 A.D.3d 641, 974 N.Y.S.2d 364 [1st Dept. 2013] ).
In opposition, defendants failed to raise an issue of fact as to whether plaintiff was a recalcitrant worker and therefore the sole proximate cause of his accident because he failed to use a ladder or the scaffold's bicycle to raise the scaffold to an appropriate height. They submitted no evidence that plaintiff was ever specifically instructed to use either of those devices and refused to do so instead of standing atop an inverted milk crate (see e.g. White v. 31–01 Steinway, LLC , 165 A.D.3d 449, 451–452, 85 N.Y.S.3d 426 [1st Dept. 2018] ; see also Mutadir , 110 A.D.3d at 642, 974 N.Y.S.2d 364 ).
The remaining factual disputes cited by defendants are insufficient to rebut plaintiff's showing, because they do not "relate to material issues" ( Forrest v. Jewish Guild for the Blind , 3 N.Y.3d 295, 312, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ). Even if plaintiff were the only witness to his accident – which the record shows he was not – he would still be entitled to summary judgment, "since nothing in the record controverts his account of the accident or calls his credibility into question" ( Rroku v. West Rac Contr. Corp. , 164 A.D.3d 1176, 1177, 82 N.Y.S.3d 709 [1st Dept. 2018] ; see e.g. McCann v. Central Synagogue , 280 A.D.2d 298, 298–299, 720 N.Y.S.2d 459 [1st Dept. 2001] ).