| Soltero v City of New York |
| 2012 NY Slip Op 02263 [93 AD3d 578] |
| March 27, 2012 |
| Appellate Division, First Department |
| Blanca Soltero, Respondent, v City of New York,Appellant. |
—[*1] Lisa M. Comeau, Garden City, for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 19, 2010,which granted plaintiff's motion for summary judgment on her cause of action pursuant to LaborLaw § 240 (1), unanimously affirmed, without costs.
Plaintiff established her entitlement to judgment as a matter of law by demonstrating that herfall from a two foot high ledge in a subway tunnel while she was working as part of a team ofNew York City Transit Authority employees who were replacing old tracks arose from theapplication of the force of gravity and the lack of an appropriate safety device (Runner v New York Stock Exch., Inc.,13 NY3d 599, 604 [2009]). In opposition, defendant did not dispute that plaintiff fell fromthe elevated ledge or "toe wall" or that the task she was performing required her to be at anelevated level. It is uncontested that the toe wall, which had been soaked with water by theTransit Authority to control the dust, was slippery and no safety device was provided to preventplaintiff from falling (see e.g. Ortiz vVarsity Holdings, LLC, 18 NY3d 335, 339-340 [2011]). On appeal, defendant arguesthat there is a question of fact that the wall from which plaintiff fell may have been less than twofeet high. However, this argument is belied by the record. Both plaintiff and her supervisorclearly testified that at the location plaintiff fell, the wall as approximately two feet high.
We have considered defendant's remaining arguments and find them unavailing.Concur—Saxe, J.P., Sweeny, Catterson, Renwick and Manzanet-Daniels, JJ.