Tinti v. Alpha Omega Bldg. & Consulting Corp., 16277

CourtNew York Supreme Court Appellate Division
Citation2022 NY Slip Op 05299
Docket Number16277,Index No. 20995/17E,Case No. 2021-04453
PartiesMaximiliano Quiel Tinti, Plaintiff-Respondent, v. Alpha Omega Building and Consulting Corp., Defendant, PMG 23-10 QPS LLC, et al., Defendants-Appellants. (And a Third-Party Action.)
Decision Date27 September 2022

2022 NY Slip Op 05299

Maximiliano Quiel Tinti, Plaintiff-Respondent,
v.

Alpha Omega Building and Consulting Corp., Defendant,

PMG 23-10 QPS LLC, et al., Defendants-Appellants. (And a Third-Party Action.)

Appeal No. 16277, Index No. 20995/17E, Case No. 2021-04453

Supreme Court of New York, First Department

September 27, 2022


Litchfield Cavo LLP, New York (Lyndsey Bechtel of counsel), for appellants.

Fellows, Hymowitz & Rice, P.C., New City (Matthew F. Rice of counsel), for respondent.

Before: Manzanet-Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about May 18, 2021, which granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim as against defendant QPS 23-10 Development LLC, unanimously affirmed, without costs.

Plaintiff sustained injuries when a 10-foot section of a 6-inch diameter hose used to pour concrete fell from 10 feet above and struck him. A certified incident report indicated that the hose had been placed on a wooden guardrail of the garage ramp above, where concrete was being poured, and that the hose fell when the guardrail collapsed under its weight.

Plaintiff established prima facie his entitlement to summary judgment on the Labor Law § 240(1) claim by submitting evidence showing that the hose fell due to it being positioned on a wooden guardrail which collapsed under the weight of the hose, and an expert affidavit concluding that the hose had not been adequately secured for purposes of the undertaking (see Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Diaz v HHC TS Reit LLC, 193 A.D.3d 640 [1st Dept 2021]). In opposition, defendants-appellants failed to raise a triable issue of fact.

In view of the foregoing, and contrary to defendants-appellants' contention, we need not remand the matter to address the remaining Labor Law claims (see Jerez v Tishman Constr. Corp. of N.Y., 118 A.D.3d 617, 617 [1st Dept 2014]).

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