GKOUMAS v. LEWIS CONSTRUCTION AND ARCHITECTURAL MILL WORK (2024)

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered October 18, 2023, which granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendants/third-party plaintiffs Lewis Construction and Architectural Mill Work and Lewis Construction NYC, Inc., unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff failed to establish his prima facie entitlement to summary judgment on his Labor Law § 240(1) claim.  In support of his motion, plaintiff submitted the transcript of his deposition testimony that his accident occurred when his ladder shifted, causing him to fall to the ground.  However, he also submitted the transcript of his supervisor's deposition testimony that plaintiff called right after his accident, said that he cut his hand because his tool slipped, but did not say that he had fallen from a ladder.  By submitting this testimony in support of his motion, plaintiff effectively adopted it as accurate (see Rosa v. 47 E. 34th St. [NY], L.P., 208 A.D.3d 1075, 1079, 175 N.Y.S.3d 41 [1st Dept. 2022];  Pirozzo v. Laight St. Fee Owner LLC, 209 A.D.3d 596, 597, 177 N.Y.S.3d 32 [1st Dept. 2022]).  Plaintiff thus called into question his own credibility regarding the manner in which his accident occurred (see Rroku v. West Rac Contr. Corp., 164 A.D.3d 1176, 1177, 82 N.Y.S.3d 709 [1st Dept. 2018];  Smigielski v. Teachers Ins. & Annuity Assn. of Am., 137 A.D.3d 676, 676, 29 N.Y.S.3d 272 [1st Dept. 2016];  Simpertegui v. Carlyle House Inc., 227 A.D.3d 486, 486, 209 N.Y.S.3d 42 [1st Dept. 2024]).  Accordingly, the motion should have been denied without regard to the sufficiency of the opposition papers (see Pullman v. Silverman, 28 N.Y.3d 1060, 1063, 43 N.Y.S.3d 793, 66 N.E.3d 663 [2016]).