DeFreitas v. Penta Painting & Decorating Corp.

Appellate Division of the Supreme Court of New York

DeFreitas v. Penta Painting & Decorating Corp.

2017 NY Slip Op 277, 146 A.D.3d 573, 45 N.Y.S.3d 83

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 17, 2017

Docket2775 305433/13

StatusPublished

Cited by5 cases

This text of 2017 NY Slip Op 277 (DeFreitas v. Penta Painting & Decorating Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DeFreitas v. Penta Painting & Decorating Corp., 2017 NY Slip Op 277, 146 A.D.3d 573, 45 N.Y.S.3d 83 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered February 23, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiff’s motion for partial summary judgment on his Labor Law § 240 (1) claim as against defendant Arthur Lange Inc., unanimously affirmed, without costs.

Plaintiff made a prima facie showing of his entitlement to partial summary judgment on his Labor Law § 240 (1) claim through his own deposition testimony and affidavit, in which he stated that the wooden plank he used to traverse a gap between the roof on which he had been standing and an adjacent retaining wall unexpectedly collapsed when he was halfway across it, causing him to fall to the ground (see *574 Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 6, 8-9 [1st Dept 2011]; Ageitos v Chatham Towers, 256 AD2d 156, 156-157 [1st Dept 1998]).

In opposition, defendant general contractor failed to raise an issue of fact. The alleged discrepancies between plaintiffs account of the accident and the accounts of two of plaintiffs coworkers are irrevelant to plaintiffs central contention that he fell when the plank collapsed, and that he was not provided with proper protection (see Ortiz v Burke Ave. Realty, Inc., 126 AD3d 577, 578 [1st Dept 2015]; Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592, 592 [1st Dept 2010]). Moreover, defendant raised no issues of fact as to whether plaintiff was the sole proximate cause of the accident. Even assuming the presence of additional safety devices at the work site, there was no evidence that plaintiff was aware of their availability or that he was expected to use them (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; McCrea v Arnlie Realty Co. LLC, 140 AD3d 427, 429 [1st Dept 2016]).

We have considered defendant’s remaining contentions, including its arguments regarding the alleged defects in plaintiffs motion papers, and find them unavailing.

Concur— Acosta, J.P., Mazzarelli, Manzanet-Daniels, Webber and Gesmer, JJ.

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Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered February 23, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiff’s motion for partial summary judgment on his Labor Law § 240 (1) claim as against defendant Arthur Lange Inc., unanimously affirmed, without costs.

Plaintiff made a prima facie showing of his entitlement to partial summary judgment on his Labor Law § 240 (1) claim through his own deposition testimony and affidavit, in which he stated that the wooden plank he used to traverse a gap between the roof on which he had been standing and an adjacent retaining wall unexpectedly collapsed when he was halfway across it, causing him to fall to the ground (see *574 Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 6, 8-9 [1st Dept 2011]; Ageitos v Chatham Towers, 256 AD2d 156, 156-157 [1st Dept 1998]).

In opposition, defendant general contractor failed to raise an issue of fact. The alleged discrepancies between plaintiffs account of the accident and the accounts of two of plaintiffs coworkers are irrevelant to plaintiffs central contention that he fell when the plank collapsed, and that he was not provided with proper protection (see Ortiz v Burke Ave. Realty, Inc., 126 AD3d 577, 578 [1st Dept 2015]; Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592, 592 [1st Dept 2010]). Moreover, defendant raised no issues of fact as to whether plaintiff was the sole proximate cause of the accident. Even assuming the presence of additional safety devices at the work site, there was no evidence that plaintiff was aware of their availability or that he was expected to use them (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; McCrea v Arnlie Realty Co. LLC, 140 AD3d 427, 429 [1st Dept 2016]).

We have considered defendant’s remaining contentions, including its arguments regarding the alleged defects in plaintiffs motion papers, and find them unavailing.

Concur— Acosta, J.P., Mazzarelli, Manzanet-Daniels, Webber and Gesmer, JJ.

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Bluebook (online)

2017 NY Slip Op 277, 146 A.D.3d 573, 45 N.Y.S.3d 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/defreitas-v-penta-painting-decorating-corp-nyappdiv-2017.

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