Henry v. Split Rock Rehab. & Health Care Ctr., LLC

• Decision Date: 12 January 2021
• Docket Number: Index No. 25661/14E,Case No. 2020-02101,12839
• Parties: Ian HENRY, Plaintiff–Respondent, v. SPLIT ROCK REHABILITATION AND HEALTH CARE CENTER, LLC, Defendant–Appellant, Sheefah Group Realty, LLC, et al., Defendants. Split Rock Rehabilitation and Health Care Center, LLC, et al., Third–Party Plaintiff–Appellant, Sheefah Group Realty LLC, Third–Party Plaintiff, v. Hi Cool, Inc., Third–Party Defendant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 489

135 N.Y.S.3d 831 (Mem)

Ian HENRY, Plaintiff–Respondent,

v.SPLIT ROCK REHABILITATION AND HEALTH CARE CENTER, LLC, Defendant–Appellant,Sheefah Group Realty, LLC, et al., Defendants.

Split Rock Rehabilitation and Health Care Center, LLC, et al., Third–Party Plaintiff–Appellant,

Sheefah Group Realty LLC, Third–Party Plaintiff,

v.Hi Cool, Inc., Third–Party Defendant.

12839

Index No. 25661/14E

Case No. 2020-02101

Supreme Court, Appellate Division, First Department, New York.

ENTERED: January 12, 2021

Caitlin Robin & Associates, PLLC, New York (Arjeta Albani of counsel), for appellant.

Rosenbaum & Rosenbaum, P.C., New York (Mark W. Walsh of counsel), for respondent.

Acosta, P.J., Webber, Gonza´lez, Scarpulla, JJ.

Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered on or about October 4, 2019, which, to the extent appealed from, denied the motion of defendant Split Rock Rehabilitation and Health Care Center, LLC (Split Rock) for summary judgment, unanimously affirmed, without costs.

Plaintiff was employed by third-party defendant Hi Cool, Inc. as an HVAC technician. On January 24, 2014, he was called to defendant Split Rock to inspect a newly installed rooftop air conditioning unit. He was escorted to the electrical room, located on the roof of the premises, by a maintenance worker employed by Split Rock. Plaintiff was injured, purportedly when a circuit breaker in the electrical room exploded.

The motion court properly denied Split Rock's motion for summary judgment, as it failed to eliminate all material issues of fact as to the cause of the accident (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; Madeline D'Anthony Enters., Inc. v. Sokolowsky, 101 A.D.3d 606, 607, 957 N.Y.S.2d 88 [1st Dept. 2012] ). Although defendants' witnesses testified that plaintiff failed to turn off the power to the circuit breaker before performing his work, plaintiff testified that the power was off when the explosion occurred (see Baumann v. Metropolitan Life Ins. Co., 17 A.D.3d 260, 793 N.Y.S.2d 410 [1st Dept. 2005] ).

Generally, a plaintiff is precluded from holding parties liable for injuries he sustained while confronting the ordinary and obvious risks of his employment ( Abbadessa v. Ulrik Holding, 244 A.D.2d 517, 664 N.Y.S.2d 620 [2d Dept. 1997] ). Here, however, there are issues of fact as to whether plaintiff's failure to perform his job in a manner consistent with his experience and knowledge caused his...