Gelvez v. Tower 111, LLC

Gelvez v Tower 111, LLC (2018 NY Slip Op 08091) Gelvez v Tower 111, LLC 2018 NY Slip Op 08091 Decided on November 27, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 27, 2018 Renwick, J.P., Tom, Webber, Kahn, Moulton, JJ. 7722 159225/12 [*1]Eduardo Gelvez, et al., Plaintiffs-Appellants. v Tower 111, LLC, et al., Defendants-Respondents, Pav-Lak Contracting, Inc., et al., Defendants. Lawrence B. Goodman, New York, for appellants. Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for respondents. Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered January 22, 2018, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim, unanimously affirmed, without costs. Plaintiff Eduardo Gelvez was injured when a cinder block wall that he was demolishing collapsed onto the scaffold on which he was working, knocking the scaffold over. The bottom of the wall had already been demolished when the accident occurred. Triable issues of fact exist as to whether plaintiff was instructed to demolish the wall from top to bottom, and whether any decision by plaintiff to work from the bottom up, in contravention of an explicit instruction or in contravention of his training or common knowledge, was the sole proximate cause of the accident (see Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35, 39-40 [2004]; Nalvarte v Long Is. Univ., 153 AD3d 712, 713-714 [2d Dept 2015]). We have considered plaintiff's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 27, 2018 CLERK