MASIELLO v. BELCASTRO (1997)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated February 16, 1996, which granted the plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1).

ORDERED that the order is affirmed, with costs.

The plaintiff was injured while attempting to install a replacement window from inside the second floor of the building in question.   The old window had been removed, leaving an opening.   As he was about to install the new replacement window, the plaintiff noticed a nail sticking out of the top of the window opening.   He climbed onto the windowsill to remove the nail, but in doing so, his foot slipped, and he fell through the opening 20 to 25 feet to the ground below.   It is undisputed that no safety devices were provided which might have prevented the accident.

The plaintiff submitted proof in admissible form establishing both that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injury (see, Keane v. Sin Hang Lee, 188 A.D.2d 636, 591 N.Y.S.2d 521;  Ferrari v. Niasher Realty, 175 A.D.2d 591, 573 N.Y.S.2d 794).   The fact the no one witnessed the plaintiff's fall does not warrant the denial of summary judgment.   The plaintiff's account of the accident was uncontroverted, and the defendant has not offered any evidence, other than mere speculation, to call into question the plaintiff's credibility (see, DeRocha v. Old Spaghetti Warehouse, 207 A.D.2d 978, 617 N.Y.S.2d 89;  Figueroa v. Manhattanville Coll., 193 A.D.2d 778, 598 N.Y.S.2d 77;  Madigan v. United Parcel Serv., 193 A.D.2d 1102, 598 N.Y.S.2d 634;  Davis v. Pizzagalli Constr. Co., 186 A.D.2d 960, 589 N.Y.S.2d 211).

MEMORANDUM BY THE COURT.