• 9042
  • Jan 22 2013 (Date Decided)
  • Friedman, J.P., Renwick, Manzanet-Daniels, Romn, Clark, JJ.
9042. JOHN PETERS, plf-ap, —AGAINST— THE NEW SCHOOL, def-res — Law Offices of Edmond C. Chakmakian, P.C., Hauppauge (Anne Marie Caradonna of counsel), for ap — Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, Uniondale (Peter S. Samaan of counsel), for res — ORDER, SUPREME COURT, NEW YORK COUNTY (PAUL WOOTEN, J.), ENTERED JUNE 27, 2011, WHICH DENIED PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY ON HIS LABOR LAW §240(1) CAUSE OF ACTION, UNANIMOUSLY REVERSED, ON THE LAW, WITHOUT COSTS, AND THE MOTION GRANTED. PLAINTIFF WAS INJURED WHEN, WHILE REMOVING PLYWOOD SHEETS THAT WERE TEMPORARILY COVERING A HOLE IN THE FLOOR, A WOOD BEAM THAT WAS USED TO SUPPORT THE PLYWOOD AND UPON WHICH PLAINTIFF WAS STANDING, CRACKED AND CAUSED HIM TO FALL THROUGH THE HOLE. PLAINTIFF ESTABLISHED, THROUGH HIS DEPOSITION TESTIMONY AND THE AFFIDAVIT OF HIS COWORKER, THAT DEFENDANT FAILED TO PROVIDE ANY SAFETY DEVICES THAT WOULD HAVE PREVENTED HIS FALL, THEREBY ENTITLING HIM TO SUMMARY JUDGMENT (see Bland v. Manocherian, 66 NY2d 452, 459 [1985]). IN OPPOSITION, DEFENDANT FAILED TO RAISE A TRIABLE ISSUE OF FACT AS TO WHETHER PLAINTIFF WAS A RECALCITRANT WORKER OR THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (see Eustaquio v. 860 Cortlandt Holdings, Inc., 95 AD3d 548 [1st Dept 2012]). The project superintendent's affidavit was conclusory and nonspecific as to what safety devices were available, where they were kept, and whether plaintiff knew where they were kept. A general standing order to use safety devices does not raise a question of fact that a plaintiff knew that safety devices were available and unreasonably chose not to use them (see Gallagher v. New York Post, 14 NY3d 83, 88-89 [2010]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. FRIEDMAN, J.P., RENWICK, MANZANET-DANIELS, ROMN, CLARK, JJ. 9043. THE BOARD OF MANAGERS OF THE 85. 8TH AVENUE CONDOMINIUM, plf-res, v. MANHATTAN REALTY LLC def-ap, WEINER-MEGA LLC def — Morrison Cohen LLP, New York (Y. David Scharf of counsel), for ap — Starr Associates LLP, New York (Andrea L. Roschelle of counsel), for res — Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 21, 2011, which denied defendants Manhattan Realty LLC and Joel Weiner's motion for summary judgment and granted plaintiff's motion for summary judgment, unanimously modified, on the law, to deny plaintiff's motion and grant defendants' motion to the extent of dismissing plaintiff's claims for common charges allegedly owed by defendants (1) from 2004 onward, except for the amounts that defendants acknowledge are due, (2) for repair and maintenance of the lobby of the residential unit, (3) for repair of plumbing servicing the residential unit, and (4) for the costs and legal fees incurred in the instant action (without prejudice to recovering them from defendants if plaintiff is ultimately the prevailing party), and otherwise affirmed, without costs.

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