

Berisha v 209-219 Sullivan St. L.L.C. (2017 NY Slip Op 08630)





Berisha v 209-219 Sullivan St. L.L.C.


2017 NY Slip Op 08630


Decided on December 12, 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 December 12, 2017

Tom, J.P., Renwick, Gische, Oing, Singh, JJ.


5177

[*1]Avdyl Berisha,	 Plaintiff-Appellant,
v209-219 Sullivan Street L.L.C., et al., Defendants-Respondents.


Morgan Levine Dolan, P.C., New York (Glenn P. Dolan of counsel), for appellant.
Baxter Smith & Shapiro, P.C., Hicksville (Dennis S. Heffernan of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 20, 2016, which, in this Labor Law action, denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff is entitled to summary judgment on the issue of defendants' section 240(1) liability where he was injured when the mobile scaffold upon which he was standing wobbled, causing him to fall to the ground. The record establishes that the scaffold had no railings to prevent the fall, there is no evidence that defendants provided an adequate safety device that plaintiff refused to use, and Labor Law § 240(1) imposes no obligation that he affirmatively request one (see e.g. Vergara v SS 133 W. 21 LLC, 21 AD3d 279 [1st Dept 2005]).
In view of the foregoing, the issue of Labor Law § 241(6) liability is academic (see Jerez v Tishman Constr. Corp. of N.Y., 118 AD3d 617 [1st Dept 2014]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 12, 2017
CLERK


