Gonzalez v Broadway 371, LLC

Gonzalez v Broadway 371, LLC 2022 NY Slip Op 05789 Decided on October 18, 2022 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 and Entered: October 18, 2022
Before: Manzanet-Daniels, J.P., Mazzarelli, Oing, Kennedy, Mendez, JJ.
Index No. 153536/18, 595494/21 Appeal No. 16446-16446A Case No. 2022-01580, 2022-01581

[*1]Gilberto Gonzalez, Plaintiff-Respondent,

v

Broadway 371, LLC., et al., Defendants-Appellants. (And a Third-Party Action.)

Wilson Elser Moskowitz Edelman & Dicker, LLP,New York (Patrick J. Lawless of counsel), for appellants.

William Schwitzer & Associates, P.C., New York (Oliver N. Owaid of counsel), for respondent.

Orders, Supreme Court, New York County (Verna L. Saunders, J.), entered on or about October 13, 2021, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's fall from a plank devoid of rails or netting, three or four feet above a second story balcony, triggered the protections of Labor Law § 240(1) (see Hoyos v NY-1095 Ave. of the Ams., LLC, 156 AD3d 491, 496 [1st Dept 2017]; Arrasti v HRH Constr. LLC, 60 AD3d 582 [1st Dept 2009]). That plaintiff was using the plank to cross a gap between a sidewalk shed and the balcony rather than standing upon it to perform his work does not render the statute inapplicable (see Royland v McGovern & Co., LLC, 203 AD3d 677, 679 [1st Dept 2022]; Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 9-10 [1st Dept 2011]).

In view of the foregoing, the remaining issues raised on appeal are academic (see Auriemma at 12).

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

ENTERED: October 18, 2022