Soltero v. City of New York

Appellate Division of the Supreme Court of New York

Soltero v. City of New York

93 A.D.3d 578, 940 N.Y.S.2d 491

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

DecidedMarch 27, 2012

StatusPublished

Cited by1 cases

This text of 93 A.D.3d 578 (Soltero v. City of New York) 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

Soltero v. City of New York, 93 A.D.3d 578, 940 N.Y.S.2d 491 (N.Y. Ct. App. 2012).

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Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 19, 2010, which granted plaintiffs motion for summary judgment on her cause of action pursuant to Labor Law § 240 (1), unanimously affirmed, without costs.

Plaintiff established her entitlement to judgment as a matter of law by demonstrating that her fall from a two foot high ledge in a subway tunnel while she was working as part of a team of New York City Transit Authority employees who were replacing old tracks arose from the application of the force of gravity and the lack of an appropriate safety device (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]). In opposition, defendant did not dispute that plaintiff fell from the elevated ledge or “toe wall” or that the task she was performing required her to be at an elevated level. It is uncontested that the toe wall, which had been soaked with water by the Transit Authority to control the dust, was slippery and no safety device was provided to prevent plaintiff from falling (see e.g. Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339-340 [2011]). On appeal, defendant argues that there is a question of fact that the wall from which plaintiff fell may have been less than two feet high. However, this argument is belied by the record. Both plaintiff and her supervisor clearly testified that at the location plaintiff fell, the wall as approximately two feet high.

We have considered defendant’s remaining arguments and find them unavailing. Concur — Saxe, J.E, Sweeny, Catterson, Renwiek and Manzanet-Daniels, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 19, 2010, which granted plaintiffs motion for summary judgment on her cause of action pursuant to Labor Law § 240 (1), unanimously affirmed, without costs.

Plaintiff established her entitlement to judgment as a matter of law by demonstrating that her fall from a two foot high ledge in a subway tunnel while she was working as part of a team of New York City Transit Authority employees who were replacing old tracks arose from the application of the force of gravity and the lack of an appropriate safety device (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]). In opposition, defendant did not dispute that plaintiff fell from the elevated ledge or “toe wall” or that the task she was performing required her to be at an elevated level. It is uncontested that the toe wall, which had been soaked with water by the Transit Authority to control the dust, was slippery and no safety device was provided to prevent plaintiff from falling (see e.g. Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339-340 [2011]). On appeal, defendant argues that there is a question of fact that the wall from which plaintiff fell may have been less than two feet high. However, this argument is belied by the record. Both plaintiff and her supervisor clearly testified that at the location plaintiff fell, the wall as approximately two feet high.

We have considered defendant’s remaining arguments and find them unavailing. Concur — Saxe, J.E, Sweeny, Catterson, Renwiek and Manzanet-Daniels, JJ.

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Bluebook (online)

93 A.D.3d 578, 940 N.Y.S.2d 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soltero-v-city-of-new-york-nyappdiv-2012.

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