| Gomez v City of New York |
| 2009 NY Slip Op 04759 [63 AD3d 511] |
| June 11, 2009 |
| Appellate Division, First Department |
| Leonidas Gomez, Appellant, v City of New York et al.,Defendants, and Mr. Storeworks, LP, et al., Respondents. |
—[*1] Gallo Vitucci & Klar LLP, New York (Kimberly A. Ricciardi of counsel), forrespondents.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 14, 2008, grantingdefendants-respondents' motion for reargument of an order entered on or about October 31, 2007granting plaintiff's motion for partial summary judgment on the issue of liability on his LaborLaw § 240 (1) cause of action, which, to the extent appealed from as limited by the brief,upon reargument, recalled and vacated its prior order and denied plaintiff's motion, unanimouslyreversed, on the law, without costs, and plaintiff's motion granted.
Plaintiff was injured when he fell two stories when the fire escape on which he was workingdetached from the building and fell to the ground. Plaintiff established a prima facie entitlementto summary judgment on the issue of liability on his Labor Law § 240 (1) claim byshowing that the subject fire escape was the functional equivalent of a scaffold and failed toprovide adequate protection for the elevation-related work he was performing (see De Jara v44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 950 [2003]). The evidence shows that itwas necessary for plaintiff to stand on the exterior fire escape to remove a window on the thirdfloor of the building where he was performing demolition work and where the ceiling and floorbetween the second and third floors had already been removed. The fact that the fire escape wasa permanent rather than a temporary structure does not warrant a different determination(id.). In [*2]opposition, respondents failed to raise atriable issue of fact regarding the manner in which the accident occurred. Concur—Tom,J.P., Nardelli, Catterson, Renwick and Richter, JJ.