

Nieves v Trustees of Columbia Univ. in the City of New York (2018 NY Slip Op 00901)





Nieves v Trustees of Columbia Univ. in the City of New York


2018 NY Slip Op 00901


Decided on February 8, 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 February 8, 2018

Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.


5649

[*1]Ruby Nieves,	 Plaintiff-Respondent,
vThe Trustees of Columbia University in the City of New York, et al., Defendants-Appellants.


Rivkin Radler LLP, Uniondale (Henry Mascia of counsel), for appellants.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered December 9, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability on her Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion denied.
Triable issues of fact as to how the accident occurred warrant the denial of plaintiff's motion. Plaintiff testified that she was injured when, while standing on a scaffold and constructing a wall, she fell from the scaffold to another platform several feet below. However, defendants submitted evidence showing that she never fell from the scaffold. Defendants submitted an affidavit from plaintiff's foreman in which he stated that when he responded to the accident scene, he found plaintiff sitting on the scaffold platform on which she had been working and she had to be carried down (see Perez v Folio House, Inc., 123 AD3d 519 [1st Dept 2014]). Furthermore, the accident reports also state that following the accident, plaintiff was found sitting on top of the scaffold (see Buckley v J.A. Jones/GMO, 38 AD3d 461, 463 [1st Dept 2007]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 8, 2018
CLERK


