MOSQUERA v. TF CORNERSTONE INC (2024)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about March 8, 2023, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim and granted plaintiff's motion for partial summary judgment on that claim, unanimously affirmed, without costs.

Plaintiff set forth prima facie entitlement to summary judgment on his Labor Law § 240(1) claim with testimony that he fell off the edge of a bathtub he was standing upon to paint the room's upper corners because the ladders provided to him did not fit inside the tub when open (see Vitucci v. Durst Pyramid LLC, 205 A.D.3d 441, 168 N.Y.S.3d 45 [1st Dept. 2022]).  The description of the accident in a Workers' Compensation questionnaire does not create a question of fact as it does not have the certification of a translator indicating that plaintiff's words were accurately translated from Spanish (see Nava–Juarez v. Mosholu Fieldston Realty, LLC, 167 A.D.3d 511, 512, 91 N.Y.S.3d 373 [1st Dept. 2018];  Eustaquio v. 860 Cortlandt Holdings, Inc., 95 A.D.3d 548, 548, 944 N.Y.S.2d 78 [1st Dept. 2012]).  Reports from plaintiff's medical treatment are similarly flawed, as well as uncertified (see Lourenco v. City of New York, 228 A.D.3d 577, 582, 215 N.Y.S.3d 6 [1st Dept. 2024];  Sanchez v. 1 Burgess Rd., LLC, 195 A.D.3d 531, 532, 145 N.Y.S.3d 798 [1st Dept. 2021]).  Defendants' expert who examined the scene four years' post-accident also did not create a question of fact (see Strojek v. 33 E. 70th St. Corp., 128 A.D.3d 490, 491, 10 N.Y.S.3d 12 [1st Dept. 2015];  Serrano v. TED Gen. Contr., 157 A.D.3d 474, 474, 67 N.Y.S.3d 620 [1st Dept. 2018]).  The expert conceded that he could not state that the ladder he examined was the one plaintiff fell from.  He also admitted that the ladder was four feet in height, not six and eight as testified to by plaintiff, explaining that an unidentified individual informed him that plaintiff was incorrect.  In light of the foregoing, the expert's conclusion that plaintiff was the sole proximate cause of his accident because he could have used one of the ladders provided is unsupported by the record.  Plaintiff also adduced sufficient evidence that TF Cornerstone Inc. and Midtown West A GC LLC were the owner's agents for purposes of the Labor Law through contracts, admissions in their answer, and the testimony of their doorman (see Fox v. Brozman–Archer Realty Servs., Inc., 266 A.D.2d 97, 98, 698 N.Y.S.2d 654 [1st Dept. 1999]).  Moreover, defendants made no effort to rebut these submissions.