Mendoza v. Bayridge Parkway Associates, LLC

• Decision Date: 06 March 2007
• Docket Number: 2006-02555.
• Parties: SANTIAGO MENDOZA, Respondent, v. BAYRIDGE PARKWAY ASSOCIATES, LLC, Appellant.
• Court: New York Supreme Court — Appellate Division

38 A.D.3d 505

831 N.Y.S.2d 485

2007 NY Slip Op 01841

SANTIAGO MENDOZA, Respondent, v. BAYRIDGE PARKWAY ASSOCIATES, LLC, Appellant.

2006-02555.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 6, 2007.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 1, 2006, as denied that branch of its motion which was for summary judgment dismissing the plaintiff's Labor Law § 240 (1) cause of action and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff was employed by Structural Improvements, Inc., a contractor hired by the defendant to remove and replace bricks and stones on the exterior of a building owned by the defendant. While he and a coworker were standing on a scaffold and attempting to remove some large stones from the facade of the building, a stone, secured by a rope, fell and struck the plaintiff in the head. No other equipment was present that could have prevented the stone from falling from above and injuring the plaintiff. He commenced this action against the defendant, alleging causes of action pursuant to Labor Law § 240 (1); § 241 (6); § 200, and to recover damages for common-law negligence.

The Supreme Court, inter alia, denied that branch of the defendant's motion which was for summary judgment dismissing the plaintiff's Labor Law § 240 (1) cause of action and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action. We affirm.

Contrary to the defendant's assertion, the plaintiff was engaged in the type of elevation-related work, as defined by Labor Law § 240 (1), that requires the use of adequate safety devices (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). The plaintiff met his burden of demonstrating that the stone fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute (see Narducci v Manhasset Bay Assoc., supra at 268; Bornschein v Shuman, 7 AD3d 476, 478 [2004]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 621 [2003]; Outar v City of New York, 286 AD2d 671, 672 [200...