

McManus v City of New York (2016 NY Slip Op 06250)





McManus v City of New York


2016 NY Slip Op 06250


Decided on September 29, 2016


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 September 29, 2016

Mazzarelli, J.P., Acosta, Saxe, Moskowitz, Gesmer, JJ.


1756 307029/12

[*1]Joseph McManus, Plaintiff-Respondent,
vThe City of New York, Defendant-Appellant.


Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellant.
Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 11, 2015, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of defendant's Labor Law § 240(1) liability, unanimously reversed, on the law, without costs, and plaintiff's motion denied.
Summary judgment on the Labor Law § 240(1) claim was inappropriate, because questions of fact exist concerning whether a scaffold purportedly covering the opening of the flocculation tank through which plaintiff fell was a proper and adequate
safety device (see Ortega v City of New York, 95 AD3d 125, 128 [1st Dept 2012]) and whether, if the scaffold was an adequate safety device, plaintiff removed the device by moving it away from the opening (see Boyd v Schiavone Constr. Co., Inc., 106 AD3d 546, 548 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 29, 2016
CLERK


