| Angamarca v New York City Partnership Hous. Dev. Fund Co.,Inc. |
| 2008 NY Slip Op 08414 [56 AD3d 264] |
| November 6, 2008 |
| Appellate Division, First Department |
| Jorge Angamarca, Respondent-Appellant, and Blanca A.Guguancela Encolada, Respondent, v New York City Partnership Housing DevelopmentFund Company, Inc., et al., Appellants-Respondents. (And OtherActions.) |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia Raicus ofcounsel), for Citywide Contractors, LLC, appellant-respondent. Michelle S. Russo, Port Washington, for Jorge Angamarca, respondent-appellant. Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for Blanca A. GuguancelaEncolada, respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered June 26, 2008,which, to the extent appealed from as limited by the briefs, granted defendants' motions forsummary judgment dismissing causes of action based on common-law negligence, Labor Law§§ 200 and 241 (6) except as the latter relies on Industrial Code (12 NYCRR)§ 23-1.7 (b) (1) (i), and denied plaintiff Angamarca's cross motion for partial summaryjudgment, unanimously modified, on the law, defendants' motions granted to the extent ofdismissing the claim under Labor Law § 241-a, the cross motion granted on plaintiffAngamarca's claim pursuant to section 240 (1), and otherwise affirmed, without costs.
During the construction of a townhouse, Angamarca fell from the roof and was discoveredlying on the second floor of the building. Although no one witnessed the fall, and the injuredworker had no recollection of what happened, there was strong circumstantial evidence (seeBurgos v Aqueduct Realty Corp., 92 NY2d 544, 550 [1998]) that he probably fell through animproperly covered skylight hole in the roof. Just prior to the fall, Angamarca and a coworkerwere on the roof near the opening. There were only three pieces of plywood at the scene, two ofwhich covered the two openings in the roof. More wood had been requested, and was being sentup by lift.[*2]
Deposition testimony indicated that the holes weregenerally covered by plywood sheets nailed on, but it was not unusual for the plywood to beremoved from the openings. The principal of Angamarca's employer was told that the injuredparty had fallen through the skylight, and another individual testified that he came upon theinjured worker lying on some plywood. Defendants asserted that Angamarca was likely the soleproximate cause of his injuries, and suggested that he toppled off the nearby lift, rather thanfalling through an opening in the roof. However, there was no evidence that Angamarca had beenseen on the lift prior to the accident, or even that the lift was on the roof at the time. Angamarcafurther submitted an expert affidavit stating that the nature of his injuries was consistent withhaving fallen through the skylight opening, rather than from the lift.
Under these circumstances, defendants have not established the existence of a triable issue offact. Angamarca produced admissible prima facie evidence he was injured after a fall through theskylight opening and had not been provided with any safety device or equipment to afford himproper protection from such an elevation-related hazard, thereby entitling him to summaryjudgment as to liability on his claim under Labor Law § 240 (1) (see Figueiredo v New Palace PaintersSupply Co. Inc., 39 AD3d 363 [2007]). In opposition, defendants offered onlyunsupported speculation as to an alternative explanation for the injury.
The court should have summarily dismissed Angamarca's claim pursuant to Labor Law§ 241-a, which was enacted to protect those engaged in hazardous work near "elevatorshaftways, hatchways and stairwells of buildings in course of construction or demolition."Notwithstanding its proximity to a stairwell, the skylight opening fit none of these descriptions,and section 241-a thus does not apply.
We have considered the parties' remaining arguments for affirmative relief and find themunavailing. Concur—Andrias, J.P., Saxe, Gonzalez, Catterson and Acosta, JJ.