| Pichardo v Urban Renaissance Collaboration Ltd. Partnership |
| 2008 NY Slip Op 04270 [51 AD3d 472] |
| May 8, 2008 |
| Appellate Division, First Department |
| Ricardo Pichardo, Appellant-Respondent, v UrbanRenaissance Collaboration Limited Partnership et al.,Respondents-Appellants. |
—[*1] Quirk and Bakalor, P.C., New York (Jeanne M. Boyle of counsel), forrespondents-appellants.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered March 2, 2007,which denied the parties' respective motions for summary judgment, unanimously modified, onthe law, plaintiff granted summary judgment as to liability on his common-law negligence andLabor Law §§ 200, 240 (1) and § 241 (6) claims, and otherwise affirmed,without costs.
Plaintiff established that violation of Labor Law § 240 (1) was a proximate cause ofhis accident. Defendants' argument that failure to provide an appropriate safety device was eitherimpracticable under the circumstances or would not have prevented the accident is unavailing(see Zimmer v Chemung County Performing Arts, 65 NY2d 513 [1985]). However, theIAS court erroneously ruled that the testimony of the general contractor's president, Azziz, raisedissues of fact as to how the accident happened. Azziz merely testified that he did not recallwhether there was a hole in the floor for debris disposal, and "usually I don't let them make thehole." Defendants failed to set forth a conflicting theory with supporting evidentiary material,other than mere speculation as to how the accident occurred, sufficient to raise a triable issue offact (see Wasilewski v Museum of Modern Art, 260 AD2d 271 [1999]). This is not acase where the mechanism by which a worker suffered injury is obtuse or subject to conflictingexplanation. Plaintiff fell through a large hole in the floor that was several stories deep. In lightof Azziz's testimony that he was on the site on a daily basis, his inability to remember asix-foot-wide hole that extended from the fifth floor through to the basement is simplyincredible.
Summary judgment is also appropriate on the Labor Law § 241 (6) claim where, eventhough a defense of comparative negligence is raised, insufficient evidentiary proof is offered toraise a triable issue in response to the plaintiff's prima facie entitlement to judgment as a matterof law (see Keena v Gucci Shops, 300 AD2d 82, 83 [2002]). Again, Azziz's testimonythat he was unaware of the disposal of debris through the six-foot-wide hole cut into the flooringby the employees of his own demolition subcontractor was insufficient to create a triable issue offact.
There are no issues of fact as to the subcontractor's exercise of the requisite degree of [*2]control over the injury-producing work. Thus, in thesecircumstances, summary judgment should have been granted to plaintiff on the claims for LaborLaw § 200 and for common-law negligence. Concur—Lippman, P.J., Mazzarelli,Sweeny, Moskowitz and Renwick, JJ.