ASPROMONTE v. USA (2018)

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered May 18, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendants Judlau Contracting, Inc. and the Metropolitan Transportation Authority, unanimously affirmed, without costs.

Plaintiff established entitlement to judgment as a matter of law through his testimony that a rail improperly wedged against a wall broke or gave way when he leaned on it while moving a broken light fixture out of the way, causing him to fall a considerable distance down a shaft.  Plaintiff also submitted the testimony of his coworker, his foreman, and defendants' safety personnel regarding their observations shortly after the accident, which was consistent with plaintiff's account (see Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 449–450, 961 N.Y.S.2d 91 [1st Dept. 2013];  Cassidy v. Highrise Hoisting & Scaffolding, Inc., 89 A.D.3d 510, 510–511, 932 N.Y.S.2d 456 [1st Dept. 2011] ).

In opposition, defendants raised a triable issue of fact as to whether the accident occurred in the manner described by plaintiff.  Defendants submitted the expert affidavits of a neuroradiologist and a biomechanical engineer, who both opined that plaintiff's injuries are inconsistent with the alleged fall (see e.g. Vargas v. Sabri, 115 A.D.3d 505, 981 N.Y.S.2d 914 [1st Dept. 2014];  Valentine v. Grossman, 283 A.D.2d 571, 573, 724 N.Y.S.2d 504 [2d Dept. 2001] ).  Contrary to plaintiff's contention, the fact that the expert's conclusions contradict plaintiff's account and other evidence corroborating his account does not render the experts' conclusions speculative.