MARTINEZ v. Custom Built Homes, Inc., et al., Defendants. (2021)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 13, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim as against defendants Jaswinder Singh Ghorta and Maddelena Fasano, unanimously affirmed, without costs.

Plaintiff established prima facie defendants' liability under Labor Law § 240(1) by showing that his injuries resulted “directly from the application of the force of gravity to the [metal jack]” he was using, which toppled over, struck him in the head and knocked him to the ground, and that he had not been provided with an adequate safety device (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009]).In opposition, defendants failed to raise a material issue of fact.  They argue that the record is unclear as to what actually struck plaintiff.  However, the notation in the unsworn hospital record that plaintiff was hit by a pipe is not inconsistent with his testimony, which described the jack as a pipe-like structure, and there is no evidence that plaintiff was struck by a portion of a nearby pipe scaffolding.  In any event, whether plaintiff was struck by an unsecured jack that fell while he was attempting to lift a steel beam or by a steel beam that fell while being hoisted by the unsecured jack is immaterial, as the uncontradicted evidence shows that the furnished elevation-related safety device, the jack, was inadequate to shield plaintiff from harm “directly flowing from the application of the force of gravity to [the jack]” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993];  see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561–562, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993];  Luongo v. City of New York, 72 A.D.3d 609, 899 N.Y.S.2d 235 [1st Dept. 2010];  Arnaud v. 140 Edgecomb LLC, 83 A.D.3d 507, 922 N.Y.S.2d 292 [1st Dept. 2011]).  Contrary to defendants' contention, plaintiff was not required to show that the unsecured jack was defective, since his testimony establishes that it failed to perform its function (Arnaud, 83 A.D.3d at 508, 922 N.Y.S.2d 292;  Avila v. St. David's Sch., 187 A.D.3d 460, 133 N.Y.S.3d 18 [1st Dept. 2020]).  If, as defendants contend, plaintiff failed to wait for assistance from his boss, who was talking on his cell phone, or installed the jack improperly, then plaintiff was, at most, comparatively negligent, which is not a defense to section 240(1) liability (Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003];  Pierrakeas v. 137 E. 38th St. LLC, 177 A.D.3d 574, 114 N.Y.S.3d 318 [1st Dept. 2019]).