| Dias v City of New York |
| 2013 NY Slip Op 06957 [110 AD3d 577] |
| October 24, 2013 |
| Appellate Division, First Department |
| Fernando C. Dias, Respondent, v City of NewYork et al., Appellants. |
—[*1] Siegel & Connerty, LLP, New York (Steven Aripotch of counsel), forrespondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered August 1,2012, which granted plaintiff's motion for summary judgment on the issue of liabilityunder Labor Law § 240 (1), unanimously affirmed, without costs.
Plaintiff, employed by defendants' subcontractor on the Second Avenue SubwayProject, made a prima facie showing of his entitlement to judgment as a matter of law.He submitted, among other things, his deposition testimony that he was directing abackfill truck over a water main trench to a utility trench, when he fell through anunshielded opening in the water main trench (see Reavely v Yonkers Raceway Programs, Inc., 88 AD3d561 [1st Dept 2011]).
In opposition, defendants failed to raise a triable issue of fact. Although plaintiff'scoworker's affidavit stated that plaintiff was directing the backfill truck to the water maintrench before he fell into the trench, section 240 (1) was violated under either version ofthe accident (see Romanczuk vMetropolitan Ins. & Annuity Co., 72 AD3d 592, 592 [1st Dept 2010]). Further,the backfilling of the trench had not yet commenced at the time of plaintiff's accident.Accordingly, we reject defendants' argument that fully shielding the trench would havebeen contrary to the objectives of plaintiff's work (compare Salazar v Novalex Contr. Corp., 18 NY3d 134,139-140 [2011]). Nor was plaintiff the sole proximate cause of his accident. The safetydevices provided—sheets of metal that partially covered the trench—wereinadequate. Further, plaintiff's conduct in walking backwards while directing the truckwas, at most, comparative negligence, which is not a defense under section 240 (1) (see Vergara v SS 133 W. 21,LLC, 21 AD3d 279, 281 [1st Dept 2005]).
The evidence plaintiff offered on reply was properly submitted in response to theevidence submitted and the arguments made by defendants in their opposition papers(see [*2]Sanford v 27-29 W. 181st St. Assn., 300AD2d 250, 251 [1st Dept 2002]). In any event, even if plaintiff's evidence were notconsidered, he would still be entitled to summary judgment. Concur—Sweeny,J.P., Renwick, Feinman and Clark, JJ.