MOLINA v. 114 FIFTH AVENUE ASSOCIATES LLC (2024)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered October 8, 2021, which granted plaintiff's motion for summary judgment on liability on his cause of action under Labor Law § 240(1), unanimously affirmed, without costs.

Plaintiff, a steam fitter, had just finished installing a run of fire suppression system piping when a rod and shield affixing one of the segments of the pipe to the ceiling broke free and the pipe fell onto his neck and shoulder.

Plaintiff established his entitlement to judgment on liability by submitting evidence in the form of deposition testimony, a coworker's affidavit, and an employee claim form, showing that his claims involved a falling object as well as a fall from an elevation caused by inadequate safety devices (see e.g. Rzymski v. Metro. Tower Life Ins. Co., 94 A.D.3d 629, 629, 942 N.Y.S.2d 530 [1st Dept. 2012];  see also Matthews v. 400 Fifth Realty, LLC, 111 A.D.3d 405, 405, 974 N.Y.S.2d 370 [1st Dept. 2013];  Gericitano v. Brookfield Properties OLP Co. LLC, 157 A.D.3d 622, 622, 67 N.Y.S.3d 453 [1st Dept. 2018]).

In opposition, defendants failed to raise a triable issue of fact.  The evidence that defendants presented in opposition to plaintiff's motion failed to impugn plaintiff's credibility or that of his coworker (see Ortiz v. Burke Ave. Realty, Inc., 126 A.D.3d 577, 578, 3 N.Y.S.3d 582 [1st Dept. 2015]).

Moreover, for plaintiff to succeed on his Labor Law § 240(1) claim, it is not necessary that the falling object be in the process of being hoisted or secured (Quattrocchi v. F.J. Sciame Constr. Co., 11 N.Y.3d 757, 759, 866 N.Y.S.2d 592, 896 N.E.2d 75 [2008]).  Nor can this pipe, which was just installed by plaintiff moments before it fell on him, be considered a permanent part of the building (Rzymski, 94 A.D.3d at 629, 942 N.Y.S.2d 530).