| Vargas v City of New York |
| 2009 NY Slip Op 01279 [59 AD3d 261] |
| February 19, 2009 |
| Appellate Division, First Department |
| Pascuala Vargas, Appellant, v City of New York et al.,Defendants, and UHAB Housing Development Fund Corporation et al.,Respondents. |
—[*1] Brody, O'Connor & O'Connor, New York (Scott A. Brody of counsel), for UHAB HousingDevelopment Fund Corporation and JF Contracting Corp., respondents. Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), forPrisma Construction, Inc., respondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 5, 2007,which, insofar as appealed from, granted the motions of defendants UHAB HousingDevelopment Fund Corporation (UHAB), JF Contracting Corp. (JF) and Prisma Construction,Inc. for summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action, anddenied plaintiff's cross motion for summary judgment on the issue of liability on the Labor Law§ 240 (1) claim, unanimously modified, on the law, defendants' motions denied, andotherwise affirmed, without costs, and the matter remanded for further proceedings.
Plaintiff claims that, while performing debris removal work on a building's basement level,she was injured when she was struck by a nine-inch-long pipe that fell several floors from above,where other workers were performing demolition work, including the cutting and removal ofpipes. The evidence suggests that insufficient safety devices were provided. It is well establishedthat falling-object liability is not limited to cases in which the object is being hoisted or securedat the precise time that it falls (seeQuattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758-759 [2008]; Boyle v 42nd St. Dev. Project, Inc., 38AD3d 404, 406-407 [2007]). In other circumstances, we would direct that summaryjudgment be directed to the plaintiff. In this case, however, purportedly because she fearedlosing her job, plaintiff did not seek medical attention until a week after the accident, after heremployment had been terminated. Since there is no other competent evidence supporting herversion of the purported incident, a credibility question as to even whether the accident occurredis presented, and requires resolution at trial.
We have not considered the request by UHAB and JF for dismissal of plaintiff's Labor [*2]Law § 241 (6) claim, since they did not file a notice ofappeal from the motion court's denial of that part of their summary judgment motion (seeCPLR 5515). Concur—Andrias, J.P., Nardelli, Catterson, Acosta and DeGrasse, JJ.