CANALES DIAZ v. CITY OF NEW YORK (2025)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered October 3, 2024, which, to the extent appealed from as limited by the briefs, denied defendants’ motion to vacate a default judgment granting plaintiffs’ motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims, unanimously affirmed, without costs.

Defendants’ counsel's family emergency involving her father's sudden illness in India was a reasonable excuse for defendants’ failure to respond to plaintiffs’ motion for summary judgment and amounted to law office failure (see Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL–CIO, 293 A.D.2d 324, 325, 739 N.Y.S.2d 822 [1st Dept. 2002]).  Although counsel did not submit any medical documentation or proof of travel to the court, plaintiffs never disputed counsel's family emergency.

However, defendants failed to offer a meritorious defense to plaintiffs’ Labor Law § 240(1) claim.  The notarized statement of a site supervisor failed to controvert plaintiff worker's account of the accident or call his credibility into question (see Pinzon v. Royal Charter Props., Inc., 211 A.D.3d 442, 443, 179 N.Y.S.3d 218 [1st Dept. 2022]).  Specifically, the statement failed to controvert plaintiff's testimony and averment, supported by an expert's affidavit, that he fell from a scaffold ladder.  The supervisor's statement also failed to rebut that a post-accident photograph showed that the ladder was not clamped to the bottom of the scaffold platform.  Moreover, the supervisor's statement failed to contest plaintiff's account that the improper placement of the ladder required him to step over a windowsill to reach it (see Klein v. City of New York, 89 N.Y.2d 833, 835, 652 N.Y.S.2d 723, 675 N.E.2d 458 [1996];  see also Hernandez v. Argo Corp., 95 A.D.3d 782, 783, 945 N.Y.S.2d 662 [1st Dept. 2012]).  The statement also did not address plaintiffs’ claim that the ladder was too short for plaintiff to hold onto while descending from the outrigger platform to the scaffold platform, requiring him to hold onto scaffold piping to step onto the top rung of the ladder (see Cuentas v. Sephora USA, Inc., 102 A.D.3d 504, 504, 958 N.Y.S.2d 352 [1st Dept. 2013]).

In view of the foregoing, the parties’ arguments regarding whether defendants presented a meritorious defense to the Labor Law § 241(6) claim are academic (see Perez v. 1334 York, LLC, 234 A.D.3d 455, 457, 225 N.Y.S.3d 73 [1st Dept. 2025]).