GUTIERREZ v. 610 LEXINGTON PROPERTY LLC (2020)

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered June 3, 2019, which, insofar as appealed from, denied defendants' motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim, and granted plaintiff's motion for partial summary judgment on the issue of liability on the § 240(a) claim, unanimously affirmed, without costs.

Summary judgment was properly granted to plaintiff on his Labor Law § 240(1) claim, where he was injured when, while being passed a heavy concrete form from workers on a scaffold above, he was unable to control the form's descent and fell backwards (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009];  Cardenas v. One State St., LLC, 68 A.D.3d 436, 890 N.Y.S.2d 41 [1st Dept. 2009]).  The fact that a nail was embedded in the form and scratched plaintiff immediately prior to his losing control of the form does not take this matter out of the protections of section 240(1).  Even if, as claimed by defendants, plaintiff was receiving a lighter sheet of plywood form cover, rather then the heavier rubber covered form, it is irrelevant because under either version of the accident, liability lies (see John v. Baharestani, 281 A.D.2d 114, 119, 721 N.Y.S.2d 625 [1st Dept. 2001]).  Nor was it plaintiff's responsibility to seek additional help after his partner was called away to perform another task (see DeRose v. Bloomingdale's Inc., 120 A.D.3d 41, 47, 986 N.Y.S.2d 127 [1st Dept. 2014]).