FLORES v. [And A Third–Party Action] (2023)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on May 19, 2022, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment as to liability on the Labor Law § 240(1) claim, and denied defendant/third-party plaintiff Exotic Design & Wire LLC (Exotic)’s motion for summary judgment dismissing that cause of action, unanimously affirmed, without costs.

Plaintiff established prima facie Exotic's violation of Labor Law § 240(1) by showing that the plywood sheet covering the bathtub that he was directed to stand on while framing a window three feet off the floor lifted, causing him to fall to the floor and suffer injury.  By placing the plywood over the bathtub upon which plaintiff was required to work, Exotic created the functional equivalent of an elevated platform or scaffold (see DaSilva v. Toll First Ave., LLC, 199 A.D.3d 511, 512, 157 N.Y.S.3d 423 [1st Dept. 2021];  Becerra v. City of New York, 261 A.D.2d 188, 189, 690 N.Y.S.2d 52 [1st Dept. 1999]).  Exotic failed to rebut this showing or otherwise raise an issue of fact.  Exotic's claim that a fall from three feet rendered the statute inapplicable is unavailing (see Rubio v. New York Proton Mgt., LLC, 192 A.D.3d 438, 439, 143 N.Y.S.3d 350 [1st Dept. 2021];  see also Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 9, 917 N.Y.S.2d 130 [1st Dept. 2011]).