LINDSAY v. Five Star Carting, L.L.C., Defendant–Appellant. (2023)

Order, Supreme Court, New York County (John J. Kelley, J.), entered on or about July 15, 2022, which granted plaintiff's motion for summary judgment as to liability on his causes of action for common-law negligence and violations of Labor Law §§ 200 and 240(1) as against defendant Five Star Carting, L.L.C., unanimously affirmed, without costs.

Plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim based on his testimony that he fell from an unsecured and wet A-frame ladder as he was trying to close a valve from which a water leak was emanating, and the testimony of his supervisor who saw him after he fell.  This testimony established that plaintiff's work exposed him to an elevation-related risk against which defendant failed to provide him with proper protection (see Rodriguez v. Milton Boron, LLC, 199 A.D.3d 537, 538, 154 N.Y.S.3d 433 [1st Dept. 2021];  Millligan v. Tutor Perini Corp., 191 A.D.3d 437, 437–438, 137 N.Y.S.3d 702 [1st Dept. 2021]).  In opposition, defendant submitted forms completed by plaintiff after the accident, contending that his descriptions of how he injured his shoulder were inconsistent with his testimony, thereby raising issues of fact as to credibility (e.g. Campos v. 68 E. 86th St. Owners Corp., 117 A.D.3d 593, 594, 988 N.Y.S.2d 1 [1st Dept. 2014]).  However, that evidence does not controvert plaintiff's testimony that he injured his shoulder when he slipped on the ladder and then used a wrench to try to prevent himself from falling (see Rroku v. West Rac Contr. Corp., 164 A.D.3d 1176, 1177, 82 N.Y.S.3d 709 [1st Dept. 2018];  Pesca v. City of New York, 298 A.D.2d 292, 293, 749 N.Y.S.2d 26 [1st Dept. 2002]).

Plaintiff was likewise entitled to partial summary judgment on his common-law negligence and Labor Law § 200 claims.  Although there is no evidence that defendant supervised the means and methods of work, there is uncontested evidence that defendant's workers broke the pipe that caused the leak, and therefore created the dangerous condition that led to the accident (see Jackson v. Hunter Roberts Constr., L.L.C., 205 A.D.3d 542, 543–544, 168 N.Y.S.3d 459 [1st Dept. 2022];  Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012]).