Medrano v. Port Authority of New York & New Jersey

Appellate Division of the Supreme Court of New York

Medrano v. Port Authority of New York & New Jersey

2017 NY Slip Op 7216, 154 A.D.3d 521, 62 N.Y.S.3d 338

Appellate Division of the Supreme Court of the State of New York·Decided October 17, 2017·No. 4687 153442/14·Published·Cited by 129 cases

Opinion

Order, Supreme Court, New York County (David B. Cohen, J.), entered July 25, 2016, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) claim as against defendant Port Authority of New York and New Jersey (Port Authority), unanimously reversed, on the law, without costs, and the motion denied.

Although plaintiffs established their prima facie entitlement to partial summary judgment on their Labor Law § 240 (1) claim (see Faver v Midtown Trackage Ventures, LLC, 150 AD3d 580 [1st Dept 2017]), Port Authority’s evidence was sufficient to raise a triable issue of fact. The injured plaintiff testified that while he was applying fireproofing material to a ceiling beam by hand he fell from an unsecured defective ladder that was supplied to him by his assistant foreman, to whom he had complained about the ladder. However, his assistant foreman averred that he had not supplied the ladder, and that plaintiff had not complained to him about it, and his coworker averred that plaintiff had worked from the ground all day. Thus, his affidavit contradicted the injured plaintiffs account of the accident, and called into question his credibility (see Smigielski v Teachers Ins. & Annuity Assn. of Am., 137 AD3d 676, 676 [1st Dept 2016]; Macchia v Nastasi White, Inc., 26 AD3d 225 [1st Dept 2006]).

Concur — Tom, J.P., Richter, Andrias, Gesmer and Singh, JJ.

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Order, Supreme Court, New York County (David B. Cohen, J.), entered July 25, 2016, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) claim as against defendant Port Authority of New York and New Jersey (Port Authority), unanimously reversed, on the law, without costs, and the motion denied.

Although plaintiffs established their prima facie entitlement to partial summary judgment on their Labor Law § 240 (1) claim (see Faver v Midtown Trackage Ventures, LLC, 150 AD3d 580 [1st Dept 2017]), Port Authority’s evidence was sufficient to raise a triable issue of fact. The injured plaintiff testified that while he was applying fireproofing material to a ceiling beam by hand he fell from an unsecured defective ladder that was supplied to him by his assistant foreman, to whom he had complained about the ladder. However, his assistant foreman averred that he had not supplied the ladder, and that plaintiff had not complained to him about it, and his coworker averred that plaintiff had worked from the ground all day. Thus, his affidavit contradicted the injured plaintiffs account of the accident, and called into question his credibility (see Smigielski v Teachers Ins. & Annuity Assn. of Am., 137 AD3d 676, 676 [1st Dept 2016]; Macchia v Nastasi White, Inc., 26 AD3d 225 [1st Dept 2006]).

Concur — Tom, J.P., Richter, Andrias, Gesmer and Singh, JJ.

Medrano v. Port Authority of New York & New Jersey, 2017 NY Slip Op 7216, 154 A.D.3d 521, 62 N.Y.S.3d 338 (N.Y. Ct. App. 2017).

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Opinion

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