| Yax v Development Team, Inc. |
| 2009 NY Slip Op 08813 [67 AD3d 1003] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Tomas Andres Yax, Appellant, v Development Team, Inc.,Respondent. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Hart, J.), which denied his motion for summary judgmenton the issue of liability on so much of the complaint as alleged violations of Labor Law §240 (1) and § 241 (6).
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied that branch of the plaintiff's motion which was forsummary judgment on the issue of liability on so much of the complaint as alleged a violation ofLabor Law § 240 (1). The plaintiff met his prima facie burden of establishing a violationof Labor Law § 240 (1) and that this violation was a proximate cause of his injuries(see Felker v Corning Inc., 90 NY2d 219, 224 [1997]; Gardner v New York City Tr.Auth., 282 AD2d 430 [2001]). The burden then shifted to the defendant to come forwardwith sufficient evidence to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Thedefendant raised a triable issue of fact as to whether the plaintiff was a recalcitrant worker underLabor Law § 240 (1) by submitting the affidavit of Angelo Kambitsis, who attested that heprovided the plaintiff and his coworkers with certain safety devices, that such safety deviceswere readily available for their use, and that he instructed the plaintiff and his coworkers to usethese devices (see Cahill v TriboroughBridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,290 [2003]). Contrary to the plaintiff's contention, the Supreme Court providently exercised itsdiscretion in considering Kambitsis's affidavit. Although the defendant failed to name Kambitsisas a witness in response to the plaintiff's discovery demands, it is evident that the plaintiff hadknowledge of Kambitsis's existence, since both the plaintiff and the defendant's projectsuperintendent mentioned Kambitsis in their deposition testimony. Moreover, the defendantoffered an excuse for failing to disclose Kambitsis as a witness and there was no evidence thatthis failure was willful (see CPLR 3126; Riley v ISS Intl. Serv. Sys., 304 AD2d637, 637 [2003]; cf. Rivera v Glen OaksVil. Owners, Inc., 41 AD3d 817, 818 [2007]). The plaintiff's remaining contentions asto the admissibility of Kambitsis's affidavit are without merit.[*2]
The Supreme Court also properly denied that branch ofthe plaintiff's motion which was for summary judgment on the issue of liability on so much ofthe complaint as alleged a violation of Labor Law § 241 (6). We agree with the plaintiffthat the Supreme Court should not have considered the expert affidavit submitted by thedefendant in opposition to the motion for summary judgment, since the defendant did notprovide an excuse for failing to identify the expert in response to the plaintiff's discoverydemands, and the plaintiff was unaware of the expert until he was served with the expert'saffidavit in opposition to his summary judgment motion (see King v Gregruss Mgt. Corp., 57 AD3d 851 [2008]; Construction by Singletree, Inc. vLowe, 55 AD3d 861 [2008]). However, in opposition to the plaintiff's prima facieshowing of entitlement to judgment as a matter of law on the issue of liability pursuant to LaborLaw § 241 (6), Kambitsis's affidavit was sufficient to raise a triable issue of fact as to"whether the equipment, operation or conduct at the worksite was reasonable and adequate underthe particular circumstances" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351[1998]; see Long v Forest-Fehlhaber, 55 NY2d 154, 160 [1982]; Daniels v PotsdamCent. School Dist., 256 AD2d 897 [1998]). Thus, the plaintiff was not entitled to summaryjudgment on the issue of liability pursuant to Labor Law § 241 (6). Santucci, J.P.,Chambers, Hall and Roman, JJ., concur.