YOCUM v. And a Third-Party Action (2022)

Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered on or about July 12, 2021, which, to the extent appealed from, denied plaintiffs’ motion for summary judgment as to liability on their Labor Law §§ 240(1) and 241(6) claims, unanimously modified, on the law, to grant the motion as to the Labor § 240(1) claim, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered on or about December 9, 2021, which, to the extent appealed from, denied plaintiffs’ cross motion for leave to renew and reargue their summary judgment motion as to the Labor Law § 241(6) claim, unanimously dismissed, without costs, as taken from a nonappealable order.

Plaintiffs made a prima facie showing of entitlement to summary judgment on the Labor Law § 240(1) claim by submitting testimony that there was no appropriate place to tie off on the sloped roof from which the injured plaintiff fell (see Anderson v. MSG Holdings, L.P., 146 A.D.3d 401, 402, 44 N.Y.S.3d 388 [1st Dept. 2017], lv dismissed 29 N.Y.3d 1100, 59 N.Y.S.3d 737, 81 N.E.3d 1217 [2017]). In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. Defendants’ contention that a fall protection system had been installed on the roof before the date of the accident was based on unauthenticated documents and vague testimony of individuals without personal knowledge (see Blackstock v. Accede Inc., 194 A.D.3d 476, 476-477, 148 N.Y.S.3d 443 [1st Dept. 2021]; Ging v. F.J. Sciame Constr. Co., Inc., 193 A.D.3d 415, 417, 146 N.Y.S.3d 603 [1st Dept. 2021]). Even if the system had been fully installed, there was no evidence that plaintiff was trained in its use.

In light of the foregoing, we need not reach plaintiffs’ claim pursuant to Labor Law § 241(6) (see Gonzalez v. 1225 Ogden Deli Grocery Corp., 158 A.D.3d 582, 584, 71 N.Y.S.3d 473 [1st Dept. 2018]).

Although plaintiffs’ cross motion was denominated as one for leave to renew and reargue, they sought only reargument, and no appeal lies from the denial of a motion to reargue (Aldalali v. Sungold Assoc. Ltd. Partnership, 172 A.D.3d 555, 556, 98 N.Y.S.3d 741 [1st Dept. 2019]).