Zengotita v JFK Intl. Air Term., LLC

Zengotita v JFK Intl. Air Term., LLC 2009 NY Slip Op 07941 [67 AD3d 426] November 5, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Caesar Zengotita, Appellant,
v
JFK International Air Terminal, LLC, Respondent.

—[*1] Gorayeb & Associates, P.C., New York (Mark H. Edwards of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 17, 2008, which, insofar as appealed from, denied plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240 (1), unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established, through his deposition testimony and his affidavits, that he fell from a scaffold platform because the scaffold moved, despite the fact that the wheels were securely locked, when he bent down to begin his descent from the platform. Defendant failed to present any evidence to support its contention that plaintiff fell because he was climbing down the scaffold in an improper manner. The uncontroverted evidence that the scaffold failed and that no other safety device was provided either to prevent the scaffold from moving or to prevent plaintiff from falling demonstrates as a matter of law that the statute was violated and that the violation was a proximate cause of plaintiff's injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Williams v 520 Madison Partnership, 38 AD3d 464, 464-465 [2007]; Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289 [2002]). Concur—Mazarelli, J.P., Andrias, Friedman, Nardelli and Moskowitz, JJ.