Saavedra v. 89 Park Avenue LLC

Appellate Division of the Supreme Court of New York

Saavedra v. 89 Park Avenue LLC

2016 NY Slip Op 6974, 143 A.D.3d 615, 39 N.Y.S.3d 462

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

DecidedOctober 25, 2016

Docket2033 154454/14

StatusPublished

Cited by15 cases

This text of 2016 NY Slip Op 6974 (Saavedra v. 89 Park Avenue LLC) 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

Saavedra v. 89 Park Avenue LLC, 2016 NY Slip Op 6974, 143 A.D.3d 615, 39 N.Y.S.3d 462 (N.Y. Ct. App. 2016).

Pincite

Opinion

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered April 7, 2016, which denied plaintiff’s motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim, unanimously reversed, on the law, without costs, and the motion granted.

Denial of summary judgment on plaintiff’s claim pursuant to Labor Law § 240 (1) was in error where plaintiff electrician was injured when he fell from an A-frame ladder as he was attempting to descend it. Plaintiff’s use of a six-foot ladder that required him to stand on the top step did not make him the sole proximate cause of his accident where the eight-foot ladder could not be opened in the space due to the presence of construction debris (see Noor v City of New York, 130 AD3d 536 [1st Dept 2015], lv dismissed 27 NY3d 975 [2016]; Keenan v Simon Prop. Group, Inc., 106 AD3d 586 [1st Dept 2013]). Defendants’ reliance on the affidavit of the high-rise superintendent is misplaced. Although the superintendent speculated that there was sufficient space to open an eight-foot ladder, this was inconsistent with his prior deposition testimony and was thus calculated to create a feigned issue of fact (see e.g. Pinto v Selinger Ice Cream Corp., 47 AD3d 496 [1st Dept 2008]).

Nor was plaintiff a recalcitrant worker (see Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]). While the site safety manager who worked for a subcontractor of defendants testified that she told plaintiff that he should not work in the room because it was unsafe due to all the debris, she explicitly denied that she directed plaintiff to stop work, explaining that she had no such authority. Moreover, prior communications between plaintiff and the safety manager, as well as the site safety logs and photographs, indicate that the debris was an *616 ongoing safety issue. On more than one occasion prior to the accident date, the site safety manager told plaintiff that she had passed along his complaints about the debris, and was trying to get the area cleaned. There was no reason for plaintiff to believe that, on the day of his accident, the site safety manager was directing him to cease working because of the recurring condition that was well known to both of them in the months prior.

Concur — Acosta, J.P., Renwick, Saxe, Feinman and Kahn, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered April 7, 2016, which denied plaintiff’s motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim, unanimously reversed, on the law, without costs, and the motion granted.

Denial of summary judgment on plaintiff’s claim pursuant to Labor Law § 240 (1) was in error where plaintiff electrician was injured when he fell from an A-frame ladder as he was attempting to descend it. Plaintiff’s use of a six-foot ladder that required him to stand on the top step did not make him the sole proximate cause of his accident where the eight-foot ladder could not be opened in the space due to the presence of construction debris (see Noor v City of New York, 130 AD3d 536 [1st Dept 2015], lv dismissed 27 NY3d 975 [2016]; Keenan v Simon Prop. Group, Inc., 106 AD3d 586 [1st Dept 2013]). Defendants’ reliance on the affidavit of the high-rise superintendent is misplaced. Although the superintendent speculated that there was sufficient space to open an eight-foot ladder, this was inconsistent with his prior deposition testimony and was thus calculated to create a feigned issue of fact (see e.g. Pinto v Selinger Ice Cream Corp., 47 AD3d 496 [1st Dept 2008]).

Nor was plaintiff a recalcitrant worker (see Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]). While the site safety manager who worked for a subcontractor of defendants testified that she told plaintiff that he should not work in the room because it was unsafe due to all the debris, she explicitly denied that she directed plaintiff to stop work, explaining that she had no such authority. Moreover, prior communications between plaintiff and the safety manager, as well as the site safety logs and photographs, indicate that the debris was an *616 ongoing safety issue. On more than one occasion prior to the accident date, the site safety manager told plaintiff that she had passed along his complaints about the debris, and was trying to get the area cleaned. There was no reason for plaintiff to believe that, on the day of his accident, the site safety manager was directing him to cease working because of the recurring condition that was well known to both of them in the months prior.

Concur — Acosta, J.P., Renwick, Saxe, Feinman and Kahn, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

2016 NY Slip Op 6974, 143 A.D.3d 615, 39 N.Y.S.3d 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saavedra-v-89-park-avenue-llc-nyappdiv-2016.

Opinion

Related

Cite This Page — Counsel Stack