

DeFreitas v Penta Painting & Decorating Corp. (2017 NY Slip Op 00277)





DeFreitas v Penta Painting & Decorating Corp.


2017 NY Slip Op 00277


Decided on January 17, 2017


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 January 17, 2017

Acosta, J.P., Mazzarelli, Manzanet-Daniels, Webber, Gesmer, JJ.


2775 305433/13

[*1]Donizete Jose DeFreitas, Plaintiff-Respondent,
vPenta Painting & Decorating Corp., et al., Defendants, Arthur Lange Inc., Defendant-Appellant. 
[And a Third-Party Action]


Burke, Conway, Loccisano & Dillon, White Plains (Martin Galvin of counsel), for appellant.
Morgan Levine Dolan, P.C., New York (Glenn P. Dolan of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered February 23, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim as against defendant Arthur Lange Inc., unanimously affirmed, without costs.
Plaintiff made a prima facie showing of his entitlement to partial summary judgment on his Labor Law § 240(1) claim through his own deposition testimony and affidavit, in which he stated that the wooden plank he used to traverse a gap between the roof on which he had been standing and an adjacent retaining wall unexpectedly collapsed when he was halfway across it, causing him to fall to the ground (see Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 6, 8-9 [1st Dept 2011]; Ageitos v Chatham Towers, 256 AD2d 156, 156-157 [1st Dept 1998]).
In opposition, defendant general contractor failed to raise an issue of fact. The alleged discrepancies between plaintiff's account of the accident and the accounts of two of plaintiff's coworkers are irrelevant to plaintiff's central contention that he fell when the plank collapsed, and that he was not provided with proper protection (see Ortiz v Burke Ave. Realty, Inc., 126 AD3d 577, 578 [1st Dept 2015]; Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592, 592 [1st Dept 2010]). Moreover, defendant raised no issues of fact as to whether plaintiff was the sole proximate cause of the accident. Even assuming the presence of additional safety devices at the work site, there was no evidence that plaintiff was aware of their availability or that he was expected to use them (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; McCrea v Arnlie Realty Co. LLC, 140 AD3d 427, 429 [1st Dept 2016]).
We have considered defendant's remaining contentions, including its arguments regarding the alleged defects in plaintiff's motion papers, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 17, 2017
CLERK


