ARGUETA v. [And a Third-Party Action] (2025)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered February 27, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the issue of liability on the Labor Law § 240(1) claim as against defendants 39 W 23rd Street LLC and Pizzarotti LLC, unanimously affirmed, without costs.

Plaintiff established prima facie entitlement to summary judgment on liability on his Labor Law § 240(1) cause of action by testifying that a metal post, which was 9 to 11 feet long and weighed approximately 150 pounds, was leaning against a truck and fell on him as he was kneeling to adjust other posts (see Torres–Quito v. 1711 LLC, 227 A.D.3d 113, 117, 207 N.Y.S.3d 56 [1st Dept. 2024]).  Given the weight and length of the post and the distance it fell, this testimony established that plaintiff was exposed to an elevation-related risk (see Ruiz v. Phipps Houses, 216 A.D.3d 522, 522, 188 N.Y.S.3d 484 [1st Dept. 2023]).

In opposition, defendants failed to submit evidence raising a triable issue of fact sufficient to defeat summary judgment on liability in plaintiff's favor.  Defendant relies upon statements in the site manager's accident report that the post weighed between 30 to 50 pounds.  These unsworn statements, which were hearsay and were offered for their truth, did not raise an issue of fact (see Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 744 N.E.2d 128 [2001];  Garcia v. 122–130 E. 23rd St. LLC, 220 A.D.3d 463, 464–465, 197 N.Y.S.3d 499 [1st Dept. 2023]).  Regardless of whether the post weighed 30, 50, or 150 pounds, the fact remains that the pole fell on plaintiff and the elevation differential involved cannot be described as de minimis (see Diaz v. HHC TS Reit LLC, 193 A.D.3d 640, 641, 147 N.Y.S.3d 35 [1st Dept. 2021];  Demetrio v. Clune Constr. Co., L.P., 176 A.D.3d 621, 622, 112 N.Y.S.3d 36 [1st Dept. 2019]).

Plaintiff also established that the failure to secure the post with an adequate safety device was a proximate cause of his injuries (see Douglas v. Tishman Constr. Corp., 205 A.D.3d 570, 571, 169 N.Y.S.3d 277 [1st Dept. 2022]).  In opposition, defendants failed to establish that the posts were purposely not tied off because they were in the process of being loaded onto the truck, as they did not submit any evidence to support this assertion (cf.  Wilinski v. 334 E. 92 Hous. Dev. Fund Corp., 18 N.Y.3d 1, 11, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011]).  Furthermore, plaintiff was not required to submit any expert testimony concerning what safety device was required (see Cazho v. Urban Bldrs. Group, Inc., 205 A.D.3d 411, 411, 167 N.Y.S.3d 495 [1st Dept. 2022]).