Kebbeh v. City of N.Y.

• Decision Date: 23 January 2014
• Citation: 2014 N.Y. Slip Op. 00411,113 A.D.3d 512,979 N.Y.S.2d 50
• Parties: Jakaria KEBBEH, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 512
979 N.Y.S.2d 50
2014 N.Y. Slip Op. 00411

Jakaria KEBBEH, Plaintiff–Respondent,
v.
The CITY OF NEW YORK, et al., Defendants–Appellants.

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

Jan. 23, 2014.

[979 N.Y.S.2d 51]

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel), for appellants.

Edelman, Krasin & Jaye, PLLC, Carle Place (Jarad L. Siegel of counsel), for respondent.

FRIEDMAN, J.P., SWEENY, DeGRASSE, RICHTER, FEINMAN, JJ.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 3, 2012, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing plaintiff's Labor Law § 200 claims and certain § 241(6) claims, unanimously modified, on the law, to grant defendants' motion insofar as it sought summary judgment dismissing plaintiff's Labor Law § 241(6) claim alleging violations of 12 NYCRR 23–1.7(g) and 12 NYCRR 12–1.2 through 1.7, and otherwise affirmed, without costs.

It is well settled that the “drastic remedy” of summary judgment can be “granted only where the moving party has ‘tendered sufficient evidence to demonstrate the absence of any material issues of fact’ ” (Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012], quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). When, as here, the movant fails to make this prima facie showing, the motion must be denied, “regardless of the sufficiency of the opposing papers” ( id., italics omitted).

In this Labor Law action, plaintiff alleges that he suffered injuries due to exposure to airborne contaminants on a construction project on which he worked as a painter. To obtain summary judgment dismissing this complaint, defendants were required to demonstrate that there was no causal link between plaintiff's alleged injuries and his exposure, eliminating any triable issues of fact ( see Cabral v. 570 W. Realty, LLC, 73 A.D.3d 674, 675, 900 N.Y.S.2d 373 [2d Dept.2010]; see generally Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448–449, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ).

Defendants did not satisfy this burden. One of the contested issues in this case is whether plaintiff was using acrylic water-based paint or an epoxy oil-based paint. If in fact plaintiff was using a water-based paint, his claims that he was required to use paint containing harmful toxins would be undermined. Defendants...