MOROCHO v. BOULEVARD GARDENS OWNERS CORP (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Boulevard Gardens Owners Corp. appeals from an order of the Supreme Court, Queens County (Diccia T. Pineda–Kirwan, J.), entered January 18, 2017.  The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against the defendant Boulevard Gardens Owners Corp.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, a construction worker, allegedly was injured when he fell from a scaffold while renovating a unit in an apartment building owned by the defendant Boulevard Gardens Owners Corp. (hereinafter the defendant).  The plaintiff commenced this action against the defendant, among others, asserting, inter alia, violations of Labor Law §§ 240(1) and 241(6).  The plaintiff thereafter moved, among other things, for summary judgment on the issue of liability on those causes of action insofar as asserted against the defendant.  In an order entered January 18, 2017, the Supreme Court granted those branches of the motion, and the defendant appeals.

The plaintiff met his prima facie burden of demonstrating a violation of Labor Law § 240(1) and that this violation was a proximate cause of his injuries, through his uncontradicted deposition testimony that he fell from a scaffold that did not have safety railings and that he was not provided with a safety device to prevent him from falling (see Bland v. Manocherian, 66 N.Y.2d 452, 461, 497 N.Y.S.2d 880, 488 N.E.2d 810;  Viera v. WFJ Realty Corp., 140 A.D.3d 737, 738, 31 N.Y.S.3d 613;  Vasquez–Rodan v. Two Little Red Hens, Ltd., 129 A.D.3d 828, 829, 10 N.Y.S.3d 603;  Moran v. 200 Varick St. Assoc., LLC, 80 A.D.3d 581, 582, 914 N.Y.S.2d 307;  Madalinski v. Structure–Tone, Inc., 47 A.D.3d 687, 850 N.Y.S.2d 505;  Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 280, 800 N.Y.S.2d 134).  Similarly, the plaintiff met his prima facie burden with respect to his Labor Law § 241(6) cause of action by establishing that the scaffold was a movable scaffold that lacked safety railings in violation of 12 NYCRR 23–5.18(b) (see 12 NYCRR 23–5.18[b];  Moran v. 200 Varick St. Assoc., LLC, 80 A.D.3d at 583, 914 N.Y.S.2d 307;  Ritzer v. 6 E. 43rd St. Corp., 57 A.D.3d 412, 413, 871 N.Y.S.2d 26;  Vergara v. SS 133 W. 21, LLC, 21 A.D.3d at 280, 800 N.Y.S.2d 134).  In opposition, the defendant failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Accordingly, we agree with the Supreme Court's determination granting those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against the defendant.

MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.