MAYORQUIN v. [And a Third-Party Action] (2022)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about March 16, 2020, which granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff's motion was timely despite the passage of the 120–day period, as the note of issue was ultimately vacated, and the case restored to its “pre-note of issue status” (Matos v. City of New York, 154 A.D.3d 532, 533, 63 N.Y.S.3d 324 [1st Dept. 2017]).  Defendants’ challenges to the propriety of plaintiff's reason for the vacatur, and moving for summary judgment on liability, are unavailing, in view of the parties’ signed so-ordered stipulation agreeing that the note of issue was withdrawn and that the case was to return to “pre-note status” without limitation.

The court properly granted plaintiff summary judgment on the issue of liability on the Labor Law § 240(1) claim.  The accident report containing the statement of plaintiff's foreman concerning how the accident occurred was properly admitted under the business record exception to the hearsay rule (see Buckley v. J.A. Jones/GMO, 38 A.D.3d 461, 463, 832 N.Y.S.2d 560 [1st Dept. 2007]).  Plaintiff's testimony that he was struck by an unsecured brick, along with the foreman's statement that debris had fallen from a torn debris bag from a hanging scaffold above, establishes a violation of Labor Law § 240(1) and proximate causation (see Hill v. Acies Group, LLC, 122 A.D.3d 428, 996 N.Y.S.2d 235 [1st Dept. 2014];  Mercado v. Caithness Long Is. LLC, 104 A.D.3d 576, 577, 961 N.Y.S.2d 424 [1st Dept. 2013]).  The brick was an object that “required securing for the purposes of the undertaking” (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001]) and, to the extent plaintiff testified that netting had been provided, such netting “proved inadequate” to protect him against falling debris (see 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];  Wiscovitch v. Lend Lease (U.S.) Constr. LMB Inc., 157 A.D.3d 576, 578, 69 N.Y.S.3d 610 [1st Dept. 2018]).  Whether plaintiff was on top of the canopy or the adjacent sidewalk bridge is immaterial, because under either version, the lack of an adequate protective device proximately caused his injuries (see Augustyn v. City of New York, 95 A.D.3d 683, 944 N.Y.S.2d 146 [1st Dept. 2012]).

Plaintiff was not the sole proximate cause of the accident.  Defendants rely on the testimony of plaintiff's employer that plaintiff was not authorized to work on top of the canopy, but the employer had no personal knowledge of the circumstances surrounding plaintiff's work at the time of the accident.  Even if it were true that plaintiff was not authorized to work on the canopy, his decision to get on top of it would have amounted to only comparative negligence, which is not a defense to a Labor Law § 240(1) claim (see Hill, 122 A.D.3d at 429, 996 N.Y.S.2d 235;  cf.  Benavidez–Portillo v. G.B. Constr. & Dev., Inc., 149 A.D.3d 681, 682–683, 51 N.Y.S.3d 141 [2d Dept. 2017]).  The alternative argument that plaintiff was not authorized to work on top of the sidewalk bridge is unsupported by the record.  To the extent plaintiff might have negligently worked under a hanging scaffold, in contravention of instructions, such also only amounts to comparative negligence (see Hill, 122 A.D.3d at 429, 996 N.Y.S.2d 235).