Guerrero v 115 Cent. Park W. Corp.

Guerrero v 115 Cent. Park W. Corp. 2019 NY Slip Op 00027 Decided on January 3, 2019 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 January 3, 2019
Friedman, J.P., Richter, Gesmer, Kern, Moulton, JJ.
7982 26884/15E

[*1]Hector Guerrero, et al., Plaintiffs-Appellants,

v

115 Central Park West Corporation, Defendant-Respondent.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered January 26, 2018, which denied plaintiffs' motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, unanimously affirmed, without costs.

Summary judgment was properly denied because triable issues of fact exist as to whether plaintiff Hector Guerrero's accident occurred in the manner in which he alleged (see e.g. Smigielski v Teachers Ins. & Annuity Assn. of Am., 137 AD3d 676 [1st Dept 2016]). The record shows that plaintiff testified that the scaffolding on which he was standing moved from side-to-side, causing his leg to fall into a gap between the scaffolding and the adjacent building. However, plaintiff did not tell his foreman about his accident on the day that it occurred, and plaintiff's foreman testified that when plaintiff did report the accident the next day, plaintiff said that he was injured while lifting equipment, but did not mention the scaffold.

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2019

CLERK