GUARACA v. WEST 25TH STREET HOUSING DEVELOPMENT FUND CORPORATION (2024)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered May 12, 2023, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) claims against defendants West 25th Street Housing Development Fund Corporation, BRC Landing Road I Housing Development Fund Corporation, BRC Landing Road II LP and defendant/third-party plaintiff The J. Pilla Group Ltd. (collectively, defendants), unanimously affirmed, without costs.

The court correctly granted summary judgment on the Labor Law § 240(1) claim.  Plaintiff, a masonry worker, was instructed to build a wall around a trash chute hole which was adjacent to an air conditioning duct hole on the second floor.  Plaintiff allegedly jumped on a piece of plywood covering the duct hole to test its strength, the unsecured planking cracked and he fell two stories to the basement, seriously injuring himself.  “We have repeatedly held that section § 240(1) is violated when workers fall through unprotected floor openings ․ Plaintiff established a prima facie violation of the statute by showing that the plywood cover on the hole was an inadequate safety device because it was not secured at the time of the accident” (Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 450 [1st Dept 2013] [internal citations omitted]).

Defendants fail to raise any issue of fact as to its recalcitrant worker defense.  There is no record evidence that a second piece of plywood which plaintiff allegedly believed was unnecessary would have constituted an adequate safety device (as opposed to a reinforced and secured planking).  If plaintiff was allegedly negligent in testing the plywood, that would go to comparative negligence and does not defeat this claim (see Singh v. City of New York, 191 AD3d 547, 548 [1st Dept 2021]).

Because plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim is granted, we need not address his Labor Law § 241(6) claim (Gonzalez v 1225 Ogden Deli Grocery Corp., 158 AD3d 582, 584 [1st Dept 2018]).