RIVERA v. [And a Third–Party Action] (2025)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 25, 2023, which granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff and his coworkers were replacing a drainpipe at a building owned by defendants when a section of the drainpipe allegedly fell and struck plaintiff in the face, injuring him.

The court properly granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.  Plaintiff established that the pipe “required securing for the purposes of the undertaking” (Rivas v. Seward Park Hous. Corp., 219 A.D.3d 59, 64, 195 N.Y.S.3d 188 [1st Dept. 2023]).  Plaintiff properly raised that argument in his reply to defendants' opposition below (see Sanford v. 27–29 W. 181 St. Assn., Inc., 300 A.D.2d 250, 251, 753 N.Y.S.2d 49 [1st Dept. 2002]).  Plaintiff testified that the sections of the pipe were attached to each other with a coupling and screws, and the pipe was attached to the wall of the building with metal hooks, which were hammered into the wall.  Contrary to defendants' contention, plaintiff established that the screws and metal hooks were inadequate safety devices (see Rzymski v. Metropolitan Tower Life Ins. Co., 94 A.D.3d 629, 629, 942 N.Y.S.2d 530 [1st Dept. 2012];  see also Delcid v. Park Ave. Christian Church [Disciples of Christ], 231 A.D.3d 666, 666, 220 N.Y.S.3d 726 [1st Dept. 2024]).  The pipe could not be considered a permanent part of the building, given that it was installed by plaintiff and his coworkers just moments before it fell on him (see Molina v. 114 Fifth Ave. Assoc. LLC, 231 A.D.3d 543, 544, 218 N.Y.S.3d 333 [1st Dept. 2024]).

We decline to consider defendants' unpreserved argument that plaintiff did not know why the pipe fell because he did not see it before it hit him, “since it is not a purely legal argument apparent on the face of the record but depends on facts not brought to [plaintiff]'s attention on the motion” (Straughter v. Thor Shore Parkway Devs., LLC, 199 A.D.3d 434, 435, 153 N.Y.S.3d 860 [1st Dept. 2021]).  In any event, plaintiff did not need to show the exact circumstances of how the pipe came to strike him (see Pados v. City of New York, 192 A.D.3d 596, 146 N.Y.S.3d 41 [1st Dept. 2021]).