Gabriel v. Top 8 Constr. Corp.

Gabriel v Top 8 Constr. Corp. 2024 NY Slip Op 33655(U) October 1, 2024 Supreme Court, Kings County Docket Number: Index No. 520336/20 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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At At an IAS lAS Term, Term, Part Part 83 of of the the Supreme Supreme Court Court ofof the State State of of NewNew York, York, held held in and for the County County of of Kings, Kings, at the the Courthouse, Courthouse, at 360 360 Ad_!Jp_s Adj!IP..sStreet, Street, ~~9k~~n, Br~~ New New York, York, on the. the. t yr day of tYf of (!) c,C4"7J::,,::; _ _ . 2024. ,2024. ti,/,J/_·;.._.._,,, PRESENT: PRESENT: HON. HON. INGRID INGRID JOSEPH, JOSEPH, J.S.C. J.S.C. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORKYORK COUNTYCOUNTY OF OF KINGS KINGS -------------------------- ---X ----------------------------------------------------------------------)( MICHAEL MICHAEL ADEL ADEL AZMY AZMY GABRIEL, GABRIEL, Plaintiff, Plaintiff, -against- -against- Index Index No. No. 520336/20 520336/20

TOP TOP 8 CONSTRUCTION CONSTRUCTION CORP., CORP., TWO TWO FULTON FULTON SQUARE SQUARE LLC, LLC, FULTON FULTON SCG SCG DEVELOPMENT DEVELOPMENT DECISION DECISION AND AND ORDER ORDER LLC, LLC, TWOTWO FULTON FULTON SQUARE SQUARE 2 LLC, LLC, FULTON FULTON SCG DEVELOPMENT DEVELOPMENT PHASE PHASE II LLC, LLC, andand Mot. Mot. Seq. No. NO.22 TANGRAM TANGRAM HOUSE HOUSE WEST WEST CONDOMINIUM, CONDOMINIUM, Defendants. Defendants. ---------------------------------------M---X -----------------------;-----------------------------------~----------)( TOP TOP 8 CONSTRUCTION CONSTRUCTION CORP., CORP., TWO TWO FULTON FULTON SQUARE SQUARE LLC, LLC, FULTON FULTON SCG SCG DEVELOPMENT DEVELOPMENT LLC, LLC, TWOTWO FULTON FULTON SQUARE SQUARE 2 LLC, LLC, FULTON FULTON SCG SCG DEVELOPMENT DEVELOPMENT PHASE PHASE II LLC, LLC, and TANGRAM TANGRAM HOUSE HOUSE WEST WEST CONDOMINIUM, CONDOMINIUM, Third-Party Third-Party Plaintiffs, Plaintiffs, -against- -against-

NEST NEST WIRELESS WIRELESS GLOBAL GLOBAL LLC, LLC, d/b/a d/b/a NEST NEST WIRELESS WIRELESS GLOBAL GLOBAL INC., INC., andand MAMA TIA TIA ELECTRICAL ELECTRICAL CORP., CORP., Third-Party Third-Party Defendants. Defendants. ---------------------------------------------X ------------------------------------------------------------------)( The The following following e-filed papers read herein: e-filed papers read herein: NYSCEF NYSCEF DocDoc Nos.: Nos.: Notice of Notice of Motion Motion and and Affidavits Affidavits (Affirmations) (Affirmations) Annexed_ Annexed_ 69-80 69-80 Opposing Opposing Affidavits Affidavits (Affirmations} (Affirmations) _ _ _ _ _ _ __ 100, 104-105 Affidavits/Affirmations Affidavits/Affirmations in Reply Reply _ _ _ _ _ _ _ ___ 108-112: 108-112; 113-120 Compliance Compliance Conference Conference Part Part Order, Order, dated dated March March 7, 2024_ 2024_ 121 ill

Upon Upon the the foregoing foregoing papers papers and prior prior to the the completion completion of of discovery discovery in this this action action to recover recover damages damages for personal personal injuries, injuries, plaintiff plaintiff Michael Michael Adel Adel Azmy Azmy Gabriel Gabriel (plaintiff) (plaintiff) moves moves (mot. (mot. seq. no. two) two) for an order, order, pursuant pursuant to CPLR CPLR 3212, 3212, granting granting him partial partial summary judgment on the summary judgment the issue issue of of liability liability on his Labor Law S 240 Labor Law§ 240 (1) (l) claim claim as against against defendants/third-party defendants/third-party plaintiff jJlaintiff Top Top 8 Construction Construction Corp. Corp. (Top (Top 8), as well well as against against defendants/third-party defendants/third-party plaintiffs plaintiffs Two Two Fulton Fulton Square Square LLC, LLC, Fulton Fulton SCG SCG Development Development LLC, LLC, Two Two Fulton Fulton Square Square 2 LLC, LLC, Fulton Fulton SCG SGG Development Development Phase Phase II LLC, LLC, and and Tangram Tangram H~use House West West Condominium Condominium (collectively, (collectively, the the Fulton Fulton defendants, defendants, and together together with with Top Top 8, defendants). defendants).

INDEX NO. 520336/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/10/2024

INDEX NO. 520336/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/10/2024

INDEX NO. 520336/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/10/2024

INDEX NO. 520336/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/10/2024

INDEX NO. 520336/2020 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 10/10/2024

§~ 240 [¹] cause cause of of action action is inappropriate" inappropriate" (Alvarez, (Alvarez, 202 AD3d AD3d at 725; see see Woszczyna BJW Assoc., Woszczyna v BJW Assoc., 31 AD3d AD3d 754, 755 [2d Dept Dept 2006]; 2006]; see see also Injai v Circle also Injai Circle F 2243 Jackson (DE), LLC, 2243 Jackson LLC, _ AD3d _' AD3d _ , 2024 2024 NY NY 04380, *² [2d Dept, Slip Op 04380, Dept, Sept Sept 11, 2024]). 11,2024]). Separately Separately from the the foregoing, foregoing, defendants' defendants' engineering engineering and construction-safety expert, and construction-safety expert, PE Lorenz, Lorenz, opined, opined, within within a reasonable degree of reasonable degree of engineering engineering and construction-safety certainty, that construction-safety certainty, that the the A-frame A-frame ladder ladder at issue issue was a suitable suitable and appropriate appropriate safety safety device, device, considering considering the nature of the nature of plaintiff's plaintiff's work, work, plaintiff's plaintiff's height of height of 6 feet (Plaintiff's (Plaintiff's tr. at 129), and and the the height height of of the unfinished ceiling through unfinished ceiling through which which plaintiff plaintiff was was running running the wire time of wire at the time of the the accident accident (PE Lorenz's Aff., ,r Lorenz's Aff., ~ 4). PE PE Lorenz Lorenz relied relied on plaintiff's plaintiff's own own testimony testimony that that the the ladder ladder provided provided to him was was not not damaged damaged or defective, and that defective, and that it functioned functioned as intended intended (PE (PE Lorenz's Aff., ,r Lorenz's Aff., ~ 5). PE PE Lorenz Lorenz further further noted noted that that plaintiff's plaintiff's post-accident photographs are inconsistent post-accident photographs inconsistent with with his testimony testimony that that the the alleged alleged debris debris in the work work room room hindered ability to place hindered his ability place the the ladder ladder on a secure secure surface surface (PE (PE Lorenz's Aff., ,r Lorenz's Aff., ~ 8). PE Lorenz Lorenz stated stated that that plaintiff's post-accident photographs plaintiff's post-accident photographs of of the work-room work-room floor floor depicted: depicted: "(1) "(I) a clean clean work work area area with with a single single pallet of materials pallet of materials wrapped wrapped in plastic; plastic; (2) no items items or obstructions obstructions on the the floor; floor; and and (3) a framed framed ceiling ceiling [in the the work work room] room] which which was was completely completely open open and accessible" accessible" (PE (PE Lorenz's Aff., ,r Lorenz's Aff., ~ 8). In addition, addition, PE Lorenz referred to the Lorenz referred the portion portion of of plaintiff's plaintiff's testimony testimony (Plaintiff's (Plaintiff's tr. at 103-105, 107) where 103-105,107) where plaintiff plaintiff stated stated that had placed that he had placed all four four feet of the feet of the A- frame frame ladder ladder evenly evenly on the cement cement floor floor and that that when when he "tried reach that "tried to reach that furthest furthest point," point," "all of "all of a sudden" sudden" he found found the ladder ladder "shaky "shaky ... ... and fell off off the ladder," without keeping ladder," without keeping either either hand hand on it for support support (PE Lorenz's Aff. ,r Lorenz's Aff. ~ 5). PE PE Lorenz Lorenz opined opined that, that, if if plaintiff's aforementioned description plaintiff's aforementioned description of of the the accident accident was was accurate, accurate, his own own actions actions constituted "misuse of constituted a "misuse of the non-defective A-frame ladder non-defective A-frame ladder and [were] [were] the sole cause cause of of his fall" Lorenz Aff. ,r fall" (PE Lorenz ~ 6) "When "When a plaintiff plaintiff is injured injured from a fall from a ladder ladder that that is not not shown defective, the issue shown to be defective, of issue of whether whether the ladder ladder provided provided proper proper protection protection under under Labor Labor Law ~ 240 Law § question of 240 (1) is a question of fact fact for the the jury" jury" (Chan (Chan v Bed Bed Bath Bath & Beyond, Beyond, 284 284 AD2d AD2d 290 [2d Dept Dept 2001]; 2001]; see see also also Taglioni Harbor Cove Taglioni v Harbor Assoc., 308 Cove Assoc., 308 AD2d AD2d 441, 441, 442 [2d Dept Dept 2003]; 2003]; Benefield Benefield v Ha/mar Halmar Corp., Corp., 264 264 AD2d 794, 795 [2d Dept AD2d 794, Dept 1999]). Three 1999]). Three reasons reasons support support the Court's Court's conclusion conclusion that that the issue of of whether the A-frame whether the A-frame ladder ladder at issue issue provided provided plaintiff plaintiff proper proper protection protection under under Labor Labor Law Law § 240 (I) ~ 240 (1) is a question of fact question of fact for the the jury. jury. First, First, plaintiff's plaintiff's pretrial pretrial testimony testimony indicates indicates that that he inspected inspected the ladder ladder and its stability before performing stability before performing his work, work, and that that the ladder ladder did not not fall until until (as previously previously noted) noted) "he "he tried tried to reach the furthest" reach the furthest" point point with with no hands hands holding holding or placed placed on the the ladder. ladder. Second, Second, Emilio's Emilio's affidavit affidavit reflects that the reflects that the ladder ladder was was not not defective defective and and was returned returned for service service after after the the accident. accident. Third Third and finally, finally, defendants' expert, PE defendants' expert, PE Lorenz, Lorenz, opined opined that that the ladder ladder was was a suitable suitable and appropriate appropriate safety safety device device for the nature of plaintiff's nature of plaintiff's work. work. The parties' parties' remaining remaining contentions contentions have have been been considered considered and found to be either and found either without without merit merit or moot in light moot light of of the court's court's determination. determination.

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hereby, Accordingly, it is hereby, Accordingly, ORDERED that ORDERED motion (mot. plaintiff's motion that plaintiff's partial summary two) for partial (mot. seq. no. two) summary judgment issue on the issue judgment on of liability of Law §S 240 Labor Law his Labor liability on his 240 (1) claim denied without claim is denied prejudice to renew without prejudice upon the renew upon of completion of the completion discovery filing of discovery and the filing of issue. note of of a note issue. This constitutes This the decision constitutes the order of decision and order the court. of the court.

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IIon=§ ---H-o-ni Jnseph, Joseph, J.S.C J.S.C. Hon. Ingrid Joseph Han. lngnd Joseph Supreme Court Supreme Court Justice Justice

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Footnotes

[1] of 7 [* 1] In this action action sounding sounding in common-law common-law negligence negligence and violations violations of of Labor Labor Law 99 200, Law §§ 200, 240 (1 (l),), and 241 (6), plaintiff plaintiff alleges alleges that, on October October 15, 2020, 2020, at approximately approximately 11 11:30 a.m., he fell off :30 a.m., off a six-foot six-foot A-frame A-frame ladder ladder while while running running electrical electrical cables cables through through a framed framed open open ceiling ceiling inside inside the the premises premises under under construction construction in Flushing, Flushing, New New York. York. At the time time of of the accident, accident, the Fulton Fulton defendants defendants owned owned the the premises premises under under construction. construction. Top Top 8 acted acted as the the general general contractor contractor for the construction construction project. project. Third-party Third-party defendant defendant Matia Matia Electrical Electrical Corp. Corp. (Matia) (Matia) employed employed plaintiff plaintiff as an electrician/helper. electrician/helper. After After defendants defendants joined joined issue, issue, they they impleaded impleaded Matia, Matia, as well well as Nest Nest Wireless Wireless Global Global LLC, LLC, d/b/a d/b/a Nest Nest Wireless Wireless Global Global Inc. (Nest). (Nest). Subsequently, Subsequently, plaintiff plaintiff asserted asserted direct direct claims claims against against Nest. Nest. Plaintiff Plaintiff was deposed deposed by defendants defendants in two sessions sessions in September September 2022. 2022. After After plaintiff served his plaintiff served second second supplemental supplemental verified verified bill of of particulars, particulars, defendants defendants deposed deposed plaintiff plaintiff once once again again in March March 2023. 2023. Thereafter, Thereafter, on May May 10, 2023, 2023, plaintiff plaintiff served served his third third supplemental supplemental bill of of particulars. particulars. On October October 6, 2023, 2023, plaintiff plaintiff served served the instant instant motion motion for partial partial summary summary judgment. judgment. At At the time time plaintiff plaintiff filed the motion, motion, defendants defendants had conducted conducted the pretrial pretrial deposition deposition of of plaintiff, plaintiff, but but Matia Matia and Nest Nest had not. On February February 7, 2024, 2024, while while the present present motion motion was pending, pending, plaintiff plaintiff moved moved (in motion motion seq. no. three) three) for an order order extending extending the note note of of issue/certificate issue/certificate ofreadiness of readiness filing filing deadline. deadline. By short-form short-form order order dated dated March March 7, 2024, 2024, the Court Court ([Ruchelsman, ((Ruchelsman, J.]) extended extended the note note of of issue/certificate issue/certificate of of readiness readiness deadline deadline to April April 4, 2025 2025 and and set forth forth dates dates for completing completing outstanding outstanding discovery, discovery, including including the the further further deposition deposition of of plaintiff plaintiff by third third party party defendants, defendants, depositions depositions of of defendants defendants and and third third party party defendants, defendants, and the IME IME of of plaintiff plaintiff (NYSCEF (NYSCEF Doc. Doc. No. 121 121). ). Plaintiff Plaintiff testified testified at his pretrial pretrial deposition deposition that that he had been been working working on the eighth eighth floor floor of of the the premises premises in the morning morning on the date of of the accident. accident. He stated stated that that his foreman, foreman, named named Emilio Emilio (formally (formally known known as Luis Luis Emilio Emilio Veras), Veras), gave gave him instructions instructions and directed directed him to work work on the eighth eighth floor floor by himself himself and pointed pointed out the area area of of a particular particular room room (the work work room) room) in which which he was to install install wiring wiring for the electrical electrical panels panels in the the framed framed open open ceiling ceiling (Plaintiff's (Plaintiff's tr. at 52, 66-69, 66-69, 78). Plaintiff Plaintiff testified testified that that when when he arrived arrived at the work work room, room, there there was was a pallet pallet on the floor floor with with materials materials on it, with with additional additional materials materials and boxes boxes "scattered "scattered everywhere. everywhere. It was very very messy" messy" (Plaintiff's (Plaintiff's tr. at 87-88, 87-88, 145). He stated stated that that the materials materials on the work-room work-room floor floor were were heavy, heavy, and that that he could could not, by himself, himself, move move them them away away to clear clear the floor the floor (Plaintiff's (Plaintiff's tr. at 153-154). 153-154). Plaintiff Plaintiff claimed claimed that that he then then returned returned to Emilio Emilio to tell him him that that he needed needed a ladder ladder to work work on (as there there was was not not one available available in the work work room), room), and that that the construction construction materials materials and boxes boxes on the work-room work-room floor floor made made it difficult difficult for him to work work there there (Plaintiff's (Plaintiff's tr. at 82-83, 82-83, 86-87). 86-87). According According to plaintiff, plaintiff, Emilio Emilio pointed pointed to a nearby nearby six-foot six-foot A-frame A-frame ladder ladder for him to take take up to the the work work room room (Plaintiff's (Plaintiff's tr. at 83-84). 83-84). Plaintiff Plaintiff testified testified that, before before the accident, accident, he had inspected inspected the ladder, and the ladder, that that it appeared appeared to have have been been in good good working working order order without without any damage damage or defects defects (Plaintiff's (Plaintiff's tr. at 85). 2

[2] of 7 [* 2] Plaintiff Plaintiff testified testified that that upon upon his return return to the work work room, room, he opened opened the the legs of of the A-frame A-frame ladder, ladder, placed placed all four feet of of the the ladder ladder on the floor, and locked the braces braces in place place before before climbing climbing up the ladder ladder (Plaintiff's (Plaintiffs tr. at 85 and and 96-97). 96-97). Plaintiff Plaintiff stated stated that that he needed needed to ascend ascend two two to three three steps steps to reach reach the ceiling ceiling to run the wires wires through through the ceiling ceiling (Plaintiff's (Plaintiffs tr. at 97). After After finishing work at a section finishing work section of of the ceiling, ceiling, plaintiff plaintiff descended descended the ladder, ladder, moved moved it one or two two steps, steps, climbed climbed up again again and and worked worked on another another section section of of the ceiling ceiling (Plaintiff's (Plaintiffs tr. at 99-100). 99-100). After After finishing finishing working working at the the second second section section of of the ceiling, ceiling, plaintiff plaintiff descended descended the ladder ladder and moved moved it approximately approximately two two to four feet, with with all four four feet of of the ladder ladder still placed placed on the cement cement floor floor (Plaintiff's (Plaintiffs tr. at 101-103, 101-103, 112-113, 112-113, 137, 155). He testified testified that, in moving moving the ladder ladder for the second second time, time, he was was trying trying to reach reach as far as away away as possible possible from from the portion portion of of the floor floor where where the construction construction materials materials were were stored stored (Plaintiff's (Plaintiffs tr. at 103). Shortly Shortly before before the the accident accident occurred, occurred, plaintiff plaintiff was ascending ascending the ladder ladder on the third third or fourth fourth step (Plaintiff's (Plaintiffs tr. at 104). As he took took another another step up the ladder ladder (Plaintiff's (Plaintiff s tr. at 105-106), 105-106), plaintiff plaintiff extended extended both of of his hands hands to reach reach "that "that furthest furthest point" point" in the the ceiling (Plaintiffs tr. at 103). As he did so, plaintiff ceiling (Plaintiff's plaintiff suddenly suddenly "found "found [that] the ladder ladder was shaky, shaky, and [he] fell off off the ladder" ladder" (Plaintiff's (Plaintiff s tr. at 103 and l105-106, 05-106, 108). According According to plaintiff, plaintiff, he had to use both both hands hands to run the wire, wire, so he could could not not hold hold onto onto the ladder ladder as he worked worked (Plaintiff's (Plaintiff s tr. at 107-108). 107-108). Plaintiff Plaintiff testified testified that, that, at the the exact exact moment moment of of his accident, accident, the ladder ladder leaned leaned to his left, he felt himself himself losing losing his balance, balance, and both both he and the ladder ladder fell down down (he, to his right right side; and the ladder ladder to his left side) side) (Plaintiff's (Plaintiff s tr. at 158-159, 158-159, 171-172). 171-172). After After the the accident, accident, plaintiff plaintiff telephoned telephoned Emilio Emilio on his cell phone, phone, asked asked him to come come to the work work room, room, and took took post-accident photographs of post-accident photographs of the room room (Plaintiff's (Plaintiffs tr. at 178-179, 178-179, 182- 183). "Summary judgment is a drastic "Summary judgment drastic remedy remedy that that deprives deprives a litigant litigant of of their their day in court, court, and it should should only only be employed employed when when there there is no doubt doubt as to the absence absence of of triable issues" (Kolivas triable issues" (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493, 493, 493 [2d Dept Dept 2005] 2005] [internal [internal quotation quotation marks marks omitted]). omitted]). A party party moving moving for summary judgment is summary judgment required required to make make a prima prima facie facie showing showing of of entitlement entitlement to judgment judgment as a matter matter of of law and tender tender sufficient sufficient evidence evidence to demonstrate demonstrate the the absence absence of of any material material issues issues of CPLR §S 3212 of fact (see CPLR 3212 [b];Alvarezv Prospect [b]; Alvarez v Prospect Hosp., 68 NY2d Hosp., NY2d 320,324 320, 324 [1986]). [1986]). Failure Failure to make make this this prima prima facie showing showing requires requires denial denial of of the motion, motion, regardless of regardless of the sufficiency sufficiency of of the opposing papers (see Alvarez, opposing papers Alvarez, 68 NY2d NY2d at 324). 324). If Ifaa movant movant meets meets the initial initial burden, burden, the burden burden shifts shifts to the opposing opposing party to produce produce evidence evidence to establish establish the the existence existence of of material material issues issues of of fact requiring requiring a trial trial for resolution CPLR §S 3212 resolution (see CPLR Alvarez, 68 NY2d 3212 [b]; Alvarez, NY2d at 324). 324). "On "On a motion motion for summary judgment, the party summary judgment, party opposing opposing the relief relief is entitled entitled to the benefit benefit of of every every favorable favorable inference inference that that may may be drawn drawn from the pleadings, pleadings, affidavits, affidavits, and competing competing contentions contentions of of the parties" parties" (Nicklas (Nicklas v Ted/en Realty Corp., Tedlen Realty Corp., 305 AD2d AD2d 385, 385, 386 [2d Dept Dept 2003]). 2003]). To establish establish liability liability pursuant Labor Law§ pursuant to Labor Law S 240 (1), a plaintiff plaintiff must must demonstrate demonstrate that that the statute statute was violated violated and that that such such violation violation proximately proximately caused injuries (see Garcia caused his or her injuries Garcia v Emerick Emerick Gross Gross 3

[3] of 7 [* 3] Real L.P., 196 AD3d Estate, L.P., Real Estate, AD3d 676,677 676, 677 [2d Dept Dept 2021]). 2021]). "The "The mere mere fact that that a plaintiff from a ladder plaintiff fell from ladder does not, in and of of itself, itself, establish establish a violation violation of of the statute; statute; however, however, a plaintiff plaintiff may may establish prim a facie establish prima entitlement entitlement to judgment judgment as a matter matter of of law by showing showing both both that that he or she fell from a defective or unsecured defective or unsecured ladder, ladder, and that that the defect defect or failure failure to secure secure the ladder ladder was was a proximate proximate cause cause of of his or or her her injuries" injuries" (Alvarez (Alvarez v 2455 2455 8 Ave, LLC, 202 AD3d Ave, LLC, AD3d 724, 725 [2d Dept Dept 2022]). 2022]). "Where, "Where, for instance, plaintiff falls instance, the plaintiff from a ladder ladder because because the plaintiff plaintiff lost his or her her balance, balance, and there there is no evidence evidence that ladder was that the ladder was defective defective or inadequate, inadequate, liability liability pursuant pursuant to Labor Labor Law§ Law ~ 240 (1) does not not attach" attach" (Cioffi (Cioffi v Target Target Corp., Corp.,

[188] AD3d AD3d 788, 791 [2d Dept Dept 2020]). 2020]). "By "By contrast, contrast, where where a ladder ladder slides, slides, shifts, shifts, tips over, or tips over, or otherwise otherwise collapses collapses for no apparent apparent reason, reason, the plaintiff plaintiff has established established a violation" violation" (id.; see Ramirez Pace Univ., Ramirez v Pace

[230] AD3d AD3d 811, 812 [2d Dept Dept 2024] 2024] ["(t)he ["(t)he collapse collapse of of a ... ... ladder ladder for no apparent apparent reason while a plaintiff reason while plaintiff is engaged engaged in an activity activity enumerated enumerated under under the statute statute creates creates a presumption presumption that that the ladder ... the ladder did not ... did not afford afford proper proper protection"]). protection"]). "Although "Although comparative fault is not a defense comparative fault defense to the the strict strict liability of the liability of the statute, statute, where plaintiff is the where the plaintiff the sole sole proximate proximate cause cause of of his or her her own own injuries, injuries, there there can be no liability liability under under Labor Law§ Labor Law ~ 240

[240] (1) (Lojano (Lojano v Soiefer Corp., 187 AD3d Realty Corp., Soiefer Bros. Realty AD3d 1160, 1162 [2d Dept 2020]). Dept 2020]). Here, Here, plaintiff's plaintiff's pretrial testimonyl 1 that pretrial testimony that the accident accident occurred occurred when when the unsecured A-frame ladder unsecured A-frame ladder on which which he was was standing standing unexpectedly unexpectedly became became "shaky" "shaky" causing causing him and and the the ladder ladder to fall, is sufficient sufficient to establish, establish, prima prima facie, his entitlement entitlement to summary judgment on the issue summary judgment issue of of liability liability on his his Labor Labor Law Law §~ 240 (1) claim claim (see Paiba 56-11 94thth St. Co., LLC, Paiba v 56-11 LLC, 228 AD3d AD3d 881, 882 [2d Dept Dept 2024]; Salinas v 64 2024]; Salinas Jefferson Apts., Jefferson LLC, 170 AD3d Apts., LLC, AD3d 1216, 1222 [2d Dept 2019]; 2019]; Casasola State, 129 AD3d Casasola v State, 758, 759 [2d AD3d 758, Dept Dept 2015 ]). 2015]). In opposition, opposition, however, however, defendants defendants and Matia Matia have have raised raised triable issues of triable issues of fact ( 1) how fact as to: (1) how the accident accident happened; happened; (2) whether whether the A-frame A-frame ladder ladder at issue issue was an adequate adequate safety safety device plaintiff's device for plaintiff's work; work; and (3) whether whether plaintiff's plaintiff's own conduct conduct was was the sole proximate proximate cause cause of of the accident, thus warranting accident, thus warranting denial denial of of his motion motion with with leave leave to renew renew after after the completion completion of of discovery discovery and the filing filing of of a note note of of issue/certificate issue/certificate of of readiness readiness (see Rivas Rivas v Purvis LLC, 222 AD3d Holdings, LLC, Purvis Holdings, AD3d 676,677 676, 677 [2d Dept Dept 2023]; 2023]; Heras Heras v Ming Ming Seng Seng & Assoc., LLC, 203 AD3d Assoc., LLC, AD3d 1146, 1147 [2d Dept Dept 2022]). 2022]). The denial denial of of plaintiff's motion is plaintiff's motion supported supported by the affidavit affidavit (proffered (proffered by Matia), Matia), dated dated November November 11, 2020, of 11,2020, of plaintiff's foreman Emilio, plaintiff's foreman Emilio, and is further further supported supported by the the expert expert affidavit, affidavit, dated dated February February 23, 2024, of 23,2024, of Bernard Bernard P. Lorenz, Lorenz, P.E. (PE (PE Lorenz), Lorenz), defendants' defendants' engineering engineering and construction-safety construction-safety expert. expert. According According to Emilio's Emilio's affidavit: affidavit: (1) plaintiff plaintiff told told Emilio Emilio that that he had had placed placed one one side (or two side (or two feet) of of the A-frame A-frame ladder ladder on the concrete concrete floor, whereas whereas he placed placed the other other side (two (two feet) on top top ofa of a piece piece of of 1 I Plaintiff Plaintiff submits submits a post-deposition post-deposition affidavit, affidavit, dated dated October October 4, 2023, 2023, in support support of of his motion (NYSCEF Doc. motion (NYSCEF Doc. No. 79), however, however, the affidavit affidavit is redundant duplicative of redundant and duplicative of plaintiff's plaintiff's deposition deposition testimony. testimony. 4 4 of 7 [* 4] the ¾-inch %-inch thick thick sheetrock; sheetrock; (2) plaintiff plaintiff confirmed confirmed to Emilio Emilio that that "the "the ladder ladder was was on unstable unstable platform"; platform"; (3) (3) plaintiff plaintiff further further told told Emilio Emilio that that "he "he was was coming coming [d]own [d]own the ladder ladder and because because the ladder ladder was off balance, was off balance, his weight weight caused caused it to shift, shift, causing causing him [t]o lose his balance"; balance"; and and (4) plaintiff told Emilio plaintiff told Emilio that that "he "he attempted attempted to regain regain his balance balance on the ladder, ladder, but but the ladder ladder [t]oppled [t]oppled over, over, causing causing him him to land land on his right right side, specifically specifically his right right arm" arm" (Emilio's (Emilio's Aff., Aff., pages pages 1-2). Emilio Emilio further further averred averred that that there there were were no issues issues with with the ladder ladder that that plaintiff plaintiff was was using using at the time time of of the accident accident and and that that the the ladder ladder was was put put back back into service service after after the accident accident (Emilio's (Emilio's Aff., Aff., page page 2). Contrary Contrary to plaintiffs plaintiffs contention, contention, Emil_io's Emilio's affidavit affidavit is admissible. admissible. Plaintiff Plaintiff asserts asserts that that Emilio Emilio was was not previously previously identified identified as a witness, witness, however, however, he cites cites to defendants' defendants' discovery discovery responses responses which which specifically specifically identify identify Emilio Emilio as a witness witness to the events events surrounding surrounding plaintiffs accident.2 2 In addition, plaintiffs accident. addition, plaintiff plaintiff repeatedly repeatedly identified identified Emilio Emilio as his foreman foreman in his pretrial testimony (see Yax v Dev. pretrial testimony Dev. Team, Inc., Inc., 67 AD3d AD3d 1003, 1004 [2d Dept Dept 2009]). 2009]). Moreover, Moreover, plaintiffs plaintiffs reliance reliance on Second Second Department cases such Department cases such as Gallo Gallo v Health Health Port, Inc., 62 AD3d AD3d 943 [2d Dept 2009], Construction Dept 2009], Construction by Singletree, Singletree, Inc. v Lowe, AD3d 861 [2d Lowe, 55 AD3d Dept 2008], and Shvartsberg Dept 2008], Shvartsberg vv City City of New York, 19 AD3d a/New AD3d 578 [2d Dept Dept 2005], 2005], is unavailing unavailing because because in each each of of those those cases, cases, unlike unlike the the instance instance here, here, an affidavit affidavit from an undisclosed undisclosed witness witness was was first proffered proffered after after discovery discovery had been been complete complete and a note of of issue/certificate issue/certificate of of readiness readiness had had been Here, been filed. Here, significant significant discovery discovery is outstanding, outstanding, and the deadline deadline to file a note note of of issue/certificate issue/certificate of of readiness readiness has been been extended extended at plaintiffs plaintiffs request request (in motion motion seq. no. three) three) to April April 4, 2025. 2025. Further, Further, although although hearsay hearsay evidence, evidence, standing standing alone, alone, is insufficient insufficient to defeat defeat a motion motion for summary summary judgment (see Feinberg judgment Feinberg v Sanz, Sanz, 115 AD3d AD3d 705, 707 [2d Dept Dept 2014]), 2014]), plaintiffs plaintiffs alleged alleged admissions admissions to Emilio Emilio are corroborated corroborated by Emilio's Emilio's own own observation observation (as reflected reflected in his affidavit) affidavit) that that one one foot foot of of the fallen fallen A-frame A-frame ladder ladder was standing standing on a piece piece of of sheetrock sheetrock immediately immediately after after the accident; and plaintiffs the accident; plaintiffs post- post- accident accident photographs photographs which which also also show show that that one foot of of the fallen fallen A-frame A-frame ladder ladder was was standing standing on a piece piece of of sheetrock sheetrock immediately immediately after accident.33 after the accident. Emilio's Emilio's affidavit affidavit also also materially materially contradicts contradicts plaintiffs plaintiffs pretrial pretrial testimony testimony as to how how the accident the accident happened. happened. According According to Emilio, Emilio, plaintiff plaintiff stated stated to him that that the ladder ladder fell while while plaintiff was descending plaintiff was descending ((or, or, in Emilio's Emilio's words, words, "coming "coming [[d]own") d]own") the ladder, ladder, rather rather than, than, as plaintiff plaintiff testified, testified, while while he was was standing standing on the ladder. ladder. Where Where "a plaintiff plaintiff is the sole witness witness to the accident accident and and his or or her her credibility credibility has been been placed placed in issue, the granting granting of of summary judgment on the issue summary judgment issue of of liability liability in favor favor of of the the plaintiff plaintiff on a Labor Labor Law Law 2 2 See plaintiffs plaintiffs affirmation in reply to Matia's Matia's opposition, Ex. 2 at NYSCEF Doc. No. 110; plaintiffs plaintiffs affirmation in reply to defendants' opposition, Ex. D at NYSCEF doc:. doc 119. 119. 3 3 Plaintiff testified that he had placed all four feet of the A-frame ladder on the concrete floor of of the work room immediately immediately before the accident (Plaintiffs (Plaintiffs tr. at page 193, 193, line line 25 to page 194, line 3 ["When I put the ladder up, I did not put the ladder on top of anything on the floor."]). fioor."]). Plaintiffs Plaintiffs post-accident photographs are included in the exhibits e-filed under NYSCEF Doc. No. 78. 5 5 of 7 [* 5]