Mendez v. Union Theological Seminary

8 A.D.3d 32, 777 N.Y.S.2d 636, 2004 N.Y. App. Div. LEXIS 7573

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 2004
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered December 5, 2002, which, insofar as appealed from, denied plaintiffs motion for partial summary judgment as to liability on his cause of action under Labor Law § 240 (1), unanimously reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.

Plaintiff fell from a scaffold formed by metal “elbow” pipes that supported wooden planks. It is undisputed that the planks were not tied or secured to the “elbow” pipes. Plaintiff testified that he fell when the plank on which he was standing “flipped over.” Since this testimony was not controverted by any competent evidence in the record, plaintiff established that his injuries had been proximately caused, in whole or in part, by a failure to provide him with a scaffold “so constructed . . . as to give proper protection” against elevation-related hazards (Labor Law § 240 [1]). Accordingly, plaintiff is entitled to judgment, as a matter of law, on the issue of liability. Concur—Nardelli, J.P., Lerner, Friedman and Gonzalez, JJ.