DE SOUZA v. HUDSON YARDS CONSTRUCTION II LLC (2024)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about January 17, 2023, which granted plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, unanimously affirmed, without costs.

Plaintiff demonstrated prima facie entitlement to judgment on his Labor Law § 240(1) claim.  Plaintiff submitted testimony and an affidavit from his coworker showing that he was injured when, while stripping concrete forms from a wall inside an elevator shaft, an unsecured plank on which he was standing shifted and caused him to fall.  In opposition, defendants failed to raise an issue of fact.  The accident report and medical forms on which defendants rely are inadmissible hearsay because defendants failed to show that the translation of the statements attributed to plaintiff were “provided by a competent, objective interpreter whose translation was accurate” (Nava–Juarez v. Mosholu Fieldston Realty, LLC, 167 A.D.3d 511, 512, 91 N.Y.S.3d 373 [1st Dept. 2018] [internal quotation marks omitted]).

Plaintiff also demonstrated that he was not provided with adequate safety devices, both because of the lack of an overhead attachment point for his self-retracting lifeline, also known as a yo-yo (see e.g. Anderson v. MSG Holdings, L.P., 146 A.D.3d 401, 402, 44 N.Y.S.3d 388 [1st Dept. 2017], lv dismissed 29 N.Y.3d 1100, 59 N.Y.S.3d 737, 81 N.E.3d 1217 [2017]), and the fact that the plank on which he was standing at the time of his accident was not secured (see e.g. Bisram v. Long Is. Jewish Hosp., 116 A.D.3d 475, 476, 983 N.Y.S.2d 518 [1st Dept. 2014]).  While defendants’ expert opined that the yo-yo was designed to stop a fall within 24 to 54 inches, the expert ignored plaintiff's expert's opinion that the failure to provide an overhead attachment point prevented the line from engaging as designed, causing plaintiff to fall 10 to 12 feet.  Plaintiff's testimony that the lifeline itself was not defective is of no moment, given that defendants did not provide an appropriate overhead attachment point, nor did defendants establish that a Doka System was available for plaintiff to use (see e.g. Yocum v. United States Tennis Assn. Inc., 208 A.D.3d 1124, 1124–1125, 176 N.Y.S.3d 12 [1st Dept. 2022]).  Defendants’ argument that plaintiff was the sole proximate cause of his accident is without merit (see e.g. Martinez v. Kingston 541, LLC, 210 A.D.3d 556, 556, 179 N.Y.S.3d 200 [1st Dept. 2022]).

In light of the grant of plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, we need not reach his Labor Law § 241(6) claim (see e.g. Fanning v. Rockefeller Univ., 106 A.D.3d 484, 485, 964 N.Y.S.2d 525 [1st Dept. 2013]).