Juan Mendez v Union Theological Seminary in the City of New York

Mendez v Union Theol. Seminary in City of N.Y. 2004 NY Slip Op 04423 [8 AD3d 32] June 3, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Juan Mendez, Appellant,
v
Union Theological Seminary in the City of New York, Respondent, et al., Defendants. (And Other Actions.)

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Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered December 5, 2002, which, insofar as appealed from, denied plaintiff's motion for partial summary judgment as to liability on his cause of action under Labor Law § 240 (1), unanimously reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.

Plaintiff fell from a scaffold formed by metal "elbow" pipes that supported wooden planks. It is undisputed that the planks were not tied or secured to the "elbow" pipes. Plaintiff testified that he fell when the plank on which he was standing "flipped over." Since this testimony was not controverted by any competent evidence in the record, plaintiff established that his injuries had been proximately caused, in whole or in part, by a failure to provide him with a scaffold "so constructed . . . as to give proper protection" against elevation-related hazards (Labor Law § 240 [1]). Accordingly, plaintiff is entitled to judgment, as a matter of law, on the issue of liability. Concur—Nardelli, J.P., Lerner, Friedman and Gonzalez, JJ.