MANFREDONIA v. 750 ASTOR LLC (2023)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 22, 2022, which granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim against defendant property owner, unanimously affirmed, without costs.

Plaintiff established entitlement to judgment as a matter of law as to the owner's liability.  He submitted deposition testimony showing that he was on site to repair a drain pipe on third-party defendant tenant's HVAC unit that needed to be removed and reset at the correct angle, when the extension ladder he was using collapsed as he descended (see Benfanti v. Tri–Main Dev., 231 A.D.2d 855, 855, 647 N.Y.S.2d 616 [4th Dept. 1996];  see also Crossett v. Schofell, 256 A.D.2d 881, 881–882, 681 N.Y.S.2d 819 [4th Dept. 1998]).

The owner and tenant failed to raise a triable issue of fact as to whether plaintiff was performing routine maintenance instead of a repair (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).  They failed to proffer any evidence to contradict plaintiff's explanation of the work he planned to perform (see Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524, 526–527, 988 N.Y.S.2d 58 [1st Dept. 2014];  compare Santiago v. Fred–Doug 117, L.L.C., 68 A.D.3d 555, 556, 891 N.Y.S.2d 59 [1st Dept. 2009]).  Additionally, the deposition testimony of plaintiff's employer, supported by the employer's business records proffered by the tenant in opposition, shows that the absence of a work ticket on the date of the accident does not controvert plaintiff's testimony, since work tickets were only prepared after work was performed and plaintiff fell before he could begin work that day.  Furthermore, contrary to the owner and tenant's contentions, the absence of a work ticket showing that the repair as described by plaintiff was subsequently performed by another service tech does not “call[ ] into question the plaintiff's credibility” (Alvarez v. 2455 8 Ave, LLC, 202 A.D.3d 724, 725, 158 N.Y.S.3d 890 [2d Dept. 2022]).