Fuentes v. YJL Broadway Hotel, LLC

2022 NY Slip Op 06636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2022
• Docket: Index No. 160915/17 Appeal No. 16708 Case No. 2022-01882
• Status: Published

Opinion

Fuentes v YJL Broadway Hotel, LLC (2022 NY Slip Op 06636)

Fuentes v YJL Broadway Hotel, LLC

2022 NY Slip Op 06636

Decided on November 22, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 22, 2022
Before: Renwick, J.P., Manzanet-Daniels, Oing, Moulton, González, JJ.

Index No. 160915/17 Appeal No. 16708 Case No. 2022-01882

[*1]Santos S. Sanchez Fuentes, Plaintiff-Appellant,

v

YJL Broadway Hotel, LLC, et al., Defendants-Respondents.

YJL Broadway Hotel, LLC, et al., Third-Party Plaintiffs,

v

BMNY Contracting Corp., Third-Party Respondent-Respondent.

William Schwitzer & Associates, P.C., New York (Christopher W. Drake of counsel), for appellant.

Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel), for YJL Broadway Hotel, LLC, LG Broadway Management, Inc., and Flintlock Construction Services, LLC, respondents.

Gorton & Gorton, LLP, Garden City (John T. Gorton of counsel), for BMNY Contracting Corp., respondent.

Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered November 30, 2021, which denied plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff's testimony that a beam fell on him as he was securing a scaffold on which his coworker was standing to strip concrete formwork beams from the ceiling, along with the unrebutted affidavit of his expert concluding that the beam was not properly secured, established his entitlement to summary judgment on liability on the Labor Law § 240(1) claim (see Diaz v Raveh Realty LLC, 182 AD3d 515, 516 [1st Dept 2020]). That plaintiff was unable to explain how the beam fell did not preclude summary judgment in his favor (see Viruet v Purvis Holdings LLC, 198 AD3d 587, 587 [1st Dept 2021]; Pados v City of New York, 192 AD3d 596, 596 [1st Dept 2021]).

We have considered defendants and third-party defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 22, 2022