| Latchuk v Port Auth. of N.Y. & N.J. |
| 2010 NY Slip Op 02425 [71 AD3d 560] |
| March 23, 2010 |
| Appellate Division, First Department |
| David Latchuk, Respondent, v The Port Authority of NewYork and New Jersey, Appellant. |
—[*1] Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered June 17, 2009,which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partialsummary judgment as to liability on his Labor Law § 240 (1) claim and to amend hisalready supplemented bill of particulars to specify certain additional Industrial Code violationsin connection with his Labor Law § 241 (6) claim, and denied so much of defendant'smotion for summary judgment dismissing the sections 240 and 241 claims, unanimouslymodified, on the law, plaintiff's motion for partial summary judgment on his section 240 claimdenied, and otherwise affirmed, without costs.
While working at the George Washington Bridge, plaintiff allegedly fell from one of thebridge towers when his sandblasting hose exploded after he attempted to unclog it. Plaintiffmaintains that although he used a spider basket to access elevated levels of the tower, he neededto exit the basket to be able to perform sandblasting. He further maintains that after theexplosion, he could not use the basket to descend to a safe level, and was forced to remove hissafety harness to climb down to a lower platform, when he fell and sustained further injuries. Inlight of defendant's position that plaintiff should have remained in the basket and that hisdecision to climb down from the work area without utilizing the basket or safety harness was thesole proximate cause of his injuries, issues of fact are presented that cannot be resolved on amotion for summary judgment (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d35, 40 [2004]).
The court properly found that the evidence demonstrated possible violations of some of theadditional Industrial Code sections alleged in plaintiff's proposed amended bill of particulars,viz., 12 NYCRR 23-5.1 (j) (1) and 23-1.22 (c) (2) and 23-5.3 (e) and 23-1.16 (b). Plaintiff'sbelated identification of these sections entails no new factual allegations, raises no new theoriesof liability, and results in no prejudice to defendant (see Noetzell v Park Ave. Hall Hous.Dev. Fund Corp., 271 AD2d 231, 233 [2000]). Concur—Mazzarelli, J.P., Friedman,DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ. [Prior Case History: 2009 NY Slip Op31390(U).]