SINGH v. NEW YORK CITY HOUSING AUTHORITY (2019)

Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered October 10, 2018, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim with his deposition testimony, photographic exhibits and expert's opinion, which showed that he fell from a 10–foot high sidewalk bridge that he was helping to assemble on defendant's property, when a pile of heavy wooden planks shifted and struck him on the legs, causing him to lose his balance.  Plaintiff testified that the side barriers for the sidewalk bridge were not yet built, and he was not supplied with a safety harness to protect him from gravity-related harm (see generally Serrano v. TED Gen. Contr., 157 A.D.3d 474, 67 N.Y.S.3d 620 [1st Dept. 2018]; Tzic v. Kasampas, 93 A.D.3d 438, 940 N.Y.S.2d 218 [1st Dept. 2012]; Morales v. Spring Scaffolding, Inc., 24 A.D.3d 42, 802 N.Y.S.2d 41 [1st Dept. 2005]).

Defendant's argument that the deposition testimony and photographic evidence were inadmissible is unavailing.  A movant's submission of its own deposition testimony is deemed to be an adoption of such testimony as accurate, and therefore admissible (see CPLR 3116[a]; Franco v. Rolling Frito–Lay Sales, Ltd., 103 A.D.3d 543, 962 N.Y.S.2d 54 [1st Dept. 2013]; Rodriguez v. Ryder Truck, Inc., 91 A.D.3d 935, 937 N.Y.S.2d 602 [2d Dept. 2012]).  Moreover, plaintiff's submitted deposition transcript was certified, and defendant did not challenge its accuracy (see e.g. Franco, 103 A.D.3d at 543, 962 N.Y.S.2d 54; Arthur v. Liberty Mut. Auto & Home Servs. LLC, 169 A.D.3d 554, 94 N.Y.S.3d 276 (1st Dept. 2019), and, on reply, plaintiff submitted the missing authentications, with no showing by defendant that it had been prejudiced by the late submission.  As for the photographic evidence, plaintiff's testimony at deposition that the photographic exhibits, and in particular respondent's photographic exhibit “B,” reflected the sidewalk bridge in question, as well as the location where he fell, which he marked, and that the depicted sidewalk bridge barriers were not in place when he fell, adequately authenticated the photographs for admissibility purposes (see e.g. Cuevas v. City of New York, 32 A.D.3d 372, 373, 821 N.Y.S.2d 37 ([1st Dept. 2006]).

Defendant's argument that plaintiff's motion for partial summary judgment was premature where its expert opined that depositions of the contractor's personnel yet to be taken might yield evidence that plaintiff was supplied with a fall-arrest safety harness, and that he was recalcitrant in not using it, lacks factual support in the record, and as such, the expert's opinion in that regard is speculative and non-probative (see generally Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002]).  The mere hope that additional discovery may lead to sufficient evidence to defeat a summary judgment motion is insufficient to deny such a motion (see Erkan v. McDonald's Corp., 146 A.D.3d 466, 44 N.Y.S.3d 429 [1st Dept. 2017]; DaSilva v. Haks Engrs., Architects & Land Surveyors, P.C., 125 A.D.3d 480, 4 N.Y.S.3d 162 [1st Dept. 2015]).  The record further shows that defendant had a reasonable opportunity to pursue discovery (see generally McGlynn v. Palace Co., 262 A.D.2d 116, 691 N.Y.S.2d 514 [1st Dept. 1999]), and defendant has not shown that it was diligent in pursuing discovery in this case (see generally Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP, 44 A.D.3d 557, 843 N.Y.S.2d 630 [1st Dept. 2007]; Rodriguez Pastor v. DeGaetano, 128 A.D.3d 218, 228, 8 N.Y.S.3d 79 [1st Dept. 2015]).

For the foregoing reasons, defendant's submissions in opposition failed to raise a triable issue of fact.