Goncalves v. City of New York

2023 NY Slip Op 00236

Opinion

Goncalves v City of New York (2023 NY Slip Op 00236)

Goncalves v City of New York

2023 NY Slip Op 00236

Decided on January 19, 2023

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: January 19, 2023
Before: Renwick, J.P., Webber, Moulton, González, Rodriguez, JJ.

Index No. 31852/19 Appeal No. 17131 Case No. 2022-01803

[*1]Liborio Goncalves, Plaintiff-Appellant,

v

City of New York, Defendant-Respondent.

Sakkas, Cahn & Weiss, LLP, New York (Matthew Sakkas of counsel), for appellant.

Pisciotti Lallis Erdreich, White Plains (Jie Shi Chen of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 7, 2022, which denied plaintiff's motion for partial summary judgment on the issue of Labor Law § 240(1) liability, unanimously affirmed, without costs.

The court properly denied plaintiff's motion for partial summary judgment because he failed to meet his prima facie burden of establishing that the alleged incident was the type of gravity-related event contemplated by Labor Law § 240(1) (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]; see also Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915-916 [1999]). Plaintiff's testimony also raises issues of fact whether his own actions were the sole proximate cause of his injury (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]; see also Blake v Neighborhood Hous. Servs. of N.Y. City., 1 NY3d 280, 290-291 [2003]; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).

Furthermore, no discovery has occurred, and plaintiff's motion was based on his General Municipal Law § 50-h transcript, in which he admitted that he did not see what caused the pipe to start rolling (see Colon v Martin, 35 NY3d 75, 79-80 [2020]), and thus summary judgment was properly denied at this early stage.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 19, 2023