ERAZO v. ROCKAWAY VILLAGE HOUSING DEVELOPMENT FUND CORPORATION (2023)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered December 9, 2022, which denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action, unanimously affirmed, without costs.

Supreme Court properly found that defendants raised triable issues of fact precluding summary judgment on liability (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).  The sworn statement of plaintiff's coworker, who asserted that he was pulling the same concrete hose that allegedly caused plaintiff's injuries, sufficiently contradicts plaintiff's testimony that they had lifted the hose three or four feet above the ground before it fell.  If the coworker's version were accepted by a jury, plaintiff would not have been “faced with the special elevation risks contemplated by the statute” (Rodriguez v. Margaret Tietz Ctr. for Nursing Care, Inc., 84 N.Y.2d 841, 844, 616 N.Y.S.2d 900, 640 N.E.2d 1134 [1994];  see Santos v. Condo 124 LLC, 161 A.D.3d 650, 654, 78 N.Y.S.3d 113 [1st Dept. 2018]).

Plaintiff also failed to demonstrate as a matter of law that the height above the floor or deck of the rebar on which he was standing requires granting summary judgment in his favor, as a jury could find that placing plywood or wooden planks on top of that rebar was “impractical and contrary to the very work at hand to cover the area where the concrete was being spread” (Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 140, 936 N.Y.S.2d 624, 960 N.E.2d 393 [2011]).  Although plaintiff claimed in his reply affidavit that he was standing 30 or 35 feet away from the end of the hose, he had testified earlier at deposition that the concrete was being poured onto the rebar he was standing on (compare Hyatt v. Queens W. Dev. Corp., 194 A.D.3d 548, 548–549, 143 N.Y.S.3d 878 [1st Dept. 2021]).

We have considered plaintiff's remaining contentions and find them unavailing.