Hernandez v BKP Realty Assoc., LLC

[*1] Hernandez v BKP Realty Assoc., LLC 2006 NY Slip Op 50552(U) [11 Misc 3d 1074(A)] Decided on February 3, 2006 Supreme Court, Suffolk County Jones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 3, 2006
Supreme Court, Suffolk County

Jose Hernandez, Plaintiff,

against

BKP Realty Associates, LLC and KULKA CONTRACTING, LLC, Defendants.



002329/2004

John J.J. Jones, J.

ORDERED that this motion by plaintiff, José Hernandez, for an order granting partial summary judgment in his favor on the issue of liability is denied.

Plaintiff commenced this action to recover damages against defendants, BKP Realty Associates, LLC, and Kulka Contracting, LLC, for personal injuries sustained on September 24, 2003 while he was working on a construction site. When the accident occurred, the plaintiff was assisting a co-worker in the process of taking a scaffold apart. He testified at his deposition that on the day of the accident, it had been raining lightly for approximately one-half hour. When he was asked, "How did the accident occur?" plaintiff responded, "I went up the rear boards and to go down I slipped and fell." He testified that he fell from a height of about thirteen feet, and that he thinks he lost his balance because he slipped on a wet board. It was also his testimony that there was nothing else that made him fall other than the wet board. Plaintiff now seeks an order granting partial summary judgment under Labor Law § 240 (1). Defendants have opposed the application.

To prevail upon a cause of action under Labor Law § 240 (1), a plaintiff must show that he was not afforded the proper protection and that the absence of that protection was the proximate cause of his injuries, since the mere fact that the plaintiff fell off the scaffolding surface is insufficient, in and of itself, to establish that the device did not provide proper protection (see Nelson v Ciba-Geigy, 268 AD2d 570, 702 NYS2d 373 [2d Dept 2000], citing Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 854; see also Alava v City of New York, 246 AD2d 614, 668 NYS2d 624 [2d Dept 1998]). Whether the device provided proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his materials (see Nelson v Ciba-Geigy, 268 AD2d 570, supra, citing Romano v Hotel Carlyle Owners Corp., 226 [*2]AD2d 441; Basmas v J.B.J. Energy Corp., 232 AD2d 594).

In this case, where the plaintiff's evidence does not demonstrate that the scaffold moved, collapsed or otherwise failed to perform its function of supporting plaintiff and his materials, the issue of whether the device provided proper protection within the meaning of Labor Law § 240 (1) is a question of fact for the jury (see Garieri v Broadway Plaza, 271 AD2d 569, 707 NYS2d 333 [2d Dept 2000]).

DATED: February 3, 2006 ________________________

HON. JOHN J.J. JONES, JR.

J.S.C.