TEJADA RODRIGUEZ v. 76 ELEVENTH AVENUE PROPERTY OWNER LLC (2024)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 30, 2023, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

The court properly found that defendant Omnibuild Construction, Inc. was a general contractor or statutory agent for purposes of Labor Law § 240(1).  It hired plaintiff's employer for concrete superstructure work and had the authority to exercise control over the work that brought about plaintiff's injury, regardless of whether it exercised that authority with respect to plaintiff's task (see Badzio v. East 68th St. Tenants Corp., 200 A.D.3d 591, 592, 161 N.Y.S.3d 32 [1st Dept. 2021];  Burke v. Hilton Resorts Corp., 85 A.D.3d 419, 420, 924 N.Y.S.2d 358 [1st Dept. 2011]).

The court properly found that plaintiff was entitled to partial summary judgment on his Labor Law § 240(1) claim.  Plaintiff was injured when he was hit by a heavy wooden panel that fell from a cured concrete-poured ceiling.  Plaintiff's failure to explain how the panel fell did not preclude summary judgment in his favor (see Fuentes v. YJL Broadway Hotel, LLC, 210 A.D.3d 552, 553, 176 N.Y.S.3d 781 [1st Dept. 2022]).  Contrary to defendants' contention, plaintiff's account of the accident was not inherently incredible or physically impossible (compare Espinal v. Trezechahn 1065 Ave. of the Ams., LLC, 94 A.D.3d 611, 613, 942 N.Y.S.2d 519 [1st Dept. 2012]).

Defendants failed to raise issues of fact.  The type of work plaintiff and his coworkers were performing, dislodging wooden panels from a newly constructed concrete ceiling, “involved a load that required securing” (Diaz v. Raveh Realty, LLC, 182 A.D.3d 515, 516, 120 N.Y.S.3d 776 [1st Dept. 2020]).  Defendants failed to establish that the use of safety devices would have “defeated the task of stripping the forms from concrete beams” (Bartley v. 76 Eleventh Ave. Prop. Owner LLC, 226 A.D.3d 528, 529, 207 N.Y.S.3d 508 [1st Dept. 2024]).