Natoli v. City of New York , 148 A.D.3d 489 ( 2017 )

Natoli v City of New York (2017 NY Slip Op 01818)

Natoli v City of New York

2017 NY Slip Op 01818

Decided on March 15, 2017

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 March 15, 2017
Friedman, J.P., Andrias, Gische, Webber, JJ.

3388 154612/12

[*1]Nicholas Natoli, Plaintiff-Respondent,

v

City of New York, et al., Defendants-Appellants.

Cozen O'Connor, New York (Rachel H. Bevans of counsel), for appellants.

Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 19, 2016, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted plaintiff's cross motion for partial summary judgment on that claim, unanimously modified, on the law, to deny plaintiff's cross motion, and otherwise affirmed, without costs.

Plaintiff was injured when he and a coworker attempted to move a wooden skid from a vertical position onto an A-frame dolly by tilting it at a 45-degree angle on one corner and toppling it onto the dolly. While plaintiff hoisted his side of the skid overhead with his arms, his coworker apparently lost his grip, and the skid fell on plaintiff, causing tears in his arm and shoulder.

That plaintiff and the skid were on the same level does not bar application of Labor Law § 240(1) (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]; Rodriguez v DRLD Dev., Corp., 109 AD3d 409 [1st Dept 2013]).

However, contrary to plaintiff's argument, a triable issue of fact exists as to the weight of the skid and, therefore, whether a safety device was required under the statute.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 15, 2017

CLERK