Cuomo v. Port Auth. of N.Y. & N.J. , 2024 NY Slip Op 03008 ( 2024 )

Cuomo v Port Auth. of N.Y. & N.J. (2024 NY Slip Op 03008)

Cuomo v Port Auth. of N.Y. & N.J.

2024 NY Slip Op 03008

Decided on June 04, 2024

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: June 04, 2024
Before: Singh, J.P., Kennedy, Mendez, Rodriguez, JJ.

Index No. 160629/19 Appeal No. 2427 Case No. 2022-04837

[*1]Emilio Cuomo, Respondent,

v

The Port Authority of New York & New Jersey et al., Appellants.

Manning Gross + Massenburg LLP, New York (Ryan Sweeney of counsel), for appellants.

Arye, Lustig & Sassower, P.C., New York (Mitchell J. Sassower of counsel), for respondent.

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered October 13, 2022, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff established entitlement to judgment as a matter of law on his Labor Law § 240(1) claim by showing that the unsecured temporary staircase he was using at the time of his accident was inadequate to protect him from a gravity-related risk (see McGarry v CVP 1 LLC, 55 AD3d 441, 441 [1st Dept 2008]). Defendants' safety inspectors conceded that the staircase failed to provide safe access from a wooden platform to the concrete floor. Moreover, plaintiff was not required to demonstrate that the staircase was defective (see Williams v 520 Madison Partnership, 38 AD3d 464, 465 [1st Dept 2007]).

Defendants failed to raise an issue of fact by submitting, among other things, accident reports that did not state that the staircase moved (see e.g. Hill v City of New York, 140 AD3d 568, 570 [1st Dept 2016]). Any alleged misuse of the temporary staircase by plaintiff was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim (see Bialucha v City of New York, 222 AD3d 511, 512 [1st Dept 2023]).

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

ENTERED: June 4, 2024