Soltero v City of New York

Soltero v City of New York 2012 NY Slip Op 02263 Decided on March 27, 2012 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 March 27, 2012
Saxe, J.P., Sweeny, Catterson, Renwick, Manzanet-Daniels, JJ.
7189 305833/09

[*1]Blanca Soltero, Plaintiff-Respondent, The

v

City of New York, Defendant-Appellant.




Wallace D. Gossett, Brooklyn (Lawrence A. Heisler of counsel),
for appellant.
Lisa M. Comeau, Garden City, for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 19, 2010, which granted plaintiff's motion for summary judgment on her cause of action pursuant to Labor Law § 240(1), unanimously affirmed, without costs.

Plaintiff established her entitlement to judgment as a matter of law by demonstrating that her fall from a two foot high ledge in a subway tunnel while she was working as part of a team of New York City Transit Authority employees who were replacing old tracks arose from the application of the force of gravity and the lack of an appropriate safety device (Runner v New York Stock Exchange, 13 NY3d 599, 604 [2009]). In opposition, defendant did not dispute that plaintiff fell from the elevated ledge or "toe wall" or that the task she was performing required her to be at an elevated level. It is uncontested that the toe wall, which had been soaked with water by the Transit Authority to control the dust, was slippery and no safety device was provided to prevent plaintiff from falling (see e.g. Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339-340 [2011]). On appeal, defendant argues that there is a question of fact that the wall from which plaintiff fell may have been less than two feet high. However, this argument is belied by the record. Both plaintiff and her supervisor clearly testified that at the location plaintiff fell, the wall as approximately two feet high.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 27, 2012

CLERK