| Marrero v 2075 Holding Co. LLC |
| 2013 NY Slip Op 03160 [106 AD3d 408] |
| May 2, 2013 |
| Appellate Division, First Department |
| John Marrero, Appellant, v 2075 Holding Co. LLCet al., Respondents. |
—[*1] McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), forrespondents.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered January 11,2012, which denied plaintiff's motion for summary judgment as to liability on his LaborLaw §§ 240 (1) and 241 (6) claims against defendants 2075 Retail Co.,LLC, 2075 Residential Co. LLC, and Gotham Construction Company LLC, unanimouslyreversed, on the law, without costs, plaintiff's motion granted as to his Labor Law§ 240 (1) claim and his Labor Law § 241 (6) claim predicated on violationsof 12 NYCRR 23-2.1 (a) (2), and, upon a search of the record, summary judgmentgranted to defendants 2075 Retail, 2075 Residential and Gotham dismissing the LaborLaw § 241 (6) claims against them based on alleged violations of 12 NYCRR23-1.7 (e) (2) and 23-2.1 (a) (1).
The motion court erred in denying plaintiff's motion for partial summary judgmenton his Labor Law § 240 (1) claim. Plaintiff made a prima facie showing that hisinjuries were caused by a failure to protect against a risk arising from a significantelevation differential. Plaintiff testified that he sustained physical injuries when he waswalking across plywood planks covering fresh concrete. The plywood planks buckledand shifted. As a result, an A-frame cart containing Sheetrock and two 500-pound steelbeams tipped over toward the plaintiff. The steel beams fell, landing on his left calf andankle. While the record did not specify the height, the uncontroverted evidence showsthat the steel beams fell a short distance from the top of the A-frame cart to plaintiff's leg.Given the beams' total weight of 1,000 pounds and the force they were able to generateduring their descent, the height differential was not de minimis (see McCallister v 200 Park,L.P., 92 AD3d 927, 928-929 [2d Dept 2012] [elevation differential was withinthe scope of the scaffold law when a scaffold on wheels fell on the plaintiff who was atthe same level as the scaffold, and it traveled a short distance]; Kempisty v 246 Spring St.,LLC, 92 AD3d 474, 474 [1st Dept 2012] [an elevation differential cannot beconsidered de minimis when the weight of the object being hoisted is capable ofgenerating an extreme amount of force, even though it only traveled a short distance]; see also Wilinski v 334 E. 92ndHous. Dev. Fund Corp., 18 NY3d 1, 10 [2011] [recovery was permitted underthe scaffold law when metal vertical pipes, on the same level as the plaintiff, toppledover on him]; Runner v NewYork Stock Exch., Inc., 13 NY3d 599 [2009]).
Defendants did not raise a triable issue of fact in opposition to plaintiff's motion. In[*2]opposition, defendants submitted the affidavit ofplaintiff's foreman who observed the scene shortly after the accident, but did not witnessit. His affidavit states that "I believe that the beam may have been stacked on the floorbehind or next to the cart," and further, that "I determined that the boards and A-framecart tipped over and may have knocked down a beam." These speculations andinconsistent statements are insufficient to raise a triable issue of fact, especially in lightof the fact that the foreman did not witness plaintiff's accident. Moreover, the foreman'saffidavit does not sufficiently challenge the conclusion that the steel beams were notproperly secured.
We find that the foreman's affidavit contradicted plaintiff's testimony about whattype of work he was doing at the time of the accident. However, this alone does not raisea triable issue of fact. Defendants' liability is unaffected by whether plaintiff was lookingfor a plank, or cleaning the site, before the steel beams fell on his leg (see John vBaharestani, 281 AD2d 114, 118 [1st Dept 2001]). In addition, defendants point toplaintiff's criminal conviction, which is admissible to impeach him as a witness in thiscase (see Pope v New York City Tr. Auth., 244 AD2d 263 [1st Dept 1997]).However, we do not agree that a criminal conviction by itself can raise an issue of fact ofcredibility when the plaintiff is the sole witness to an accident. As such, defendants failto present any evidence raising a triable issue of fact relating to the prima facie case or toplaintiff's credibility. Thus, summary judgment is properly awarded to plaintiff, eventhough it is based on plaintiff's own testimony as the sole witness to the accident (Noble v 260-261 Madison Ave.,LLC, 100 AD3d 543, 544-545 [1st Dept 2012]; see Klein v City of NewYork, 89 NY2d 833 [1996]).
As to plaintiff's Labor Law § 241 (6) claims, we hold that the motion courtimproperly denied plaintiff's motion for summary judgment based on violations of 12NYCRR 23-2.1 (a) (2). Section 23-2.1 (a) (2) states that "[m]aterial and equipment shallnot be stored upon any floor, platform or scaffold in such quantity or of such weight as toexceed the safe carrying capacity of such floor, platform or scaffold." Plaintiff made aprima facie showing that this provision applies, by testifying that an A-frame cartcontaining Sheetrock and two 500-pound beams was on plywood flooring and theplywood collapsed as he was walking on the floor. For the reasons stated above,defendants have not presented evidence to raise a triable issue of fact relating to theprima facie case of plaintiff's Labor Law § 241 (6) claim.
However, upon our search of the record (see Merritt Hill Vineyards v WindyHgts. Vineyard, 61 NY2d 106, 110-112 [1984]), we grant defendants summaryjudgment dismissing the Labor Law § 241 (6) claims that are predicated on allegedviolations of 12 NYCRR 23-1.7 (e) (2) and 23-2.1 (a) (1). Section 23-1.7 (e) (2) isinapplicable because the accident was not caused by materials or tools scattered on thefloor (see Burkoski v Structure Tone, Inc., 40 AD3d [*3]378, 383 [1st Dept 2007]). Section 23-2.1 (a) (1) isinapplicable because there is no allegation that the accident occurred in a passageway,walkway, stairway, or other thoroughfare (see id. at 382).Concur—Sweeny, J.P., Acosta, Román, Feinman and Clark, JJ.