Escobar v. 271 Mulberry St. Co., LLC

Escobar v 271 Mulberry St. Co., LLC (2017 NY Slip Op 01121)

Escobar v 271 Mulberry St. Co., LLC

2017 NY Slip Op 01121

Decided on February 10, 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 February 10, 2017
Sweeny, J.P., Renwick, Mazzarelli, Manzanet-Daniels, Feinman, JJ.

2725 306873/12 84204/12

[*1]Pablo Escobar, Plaintiff-Appellant,

v

271 Mulberry Street Company, LLC, et al., Defendants, 285 Lafayette Street Condominium, et al., Defendants-Respondents. [And a Third-Party Action]

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant.

McMahon, Martine & Gallagher, LLP, Brooklyn (Patrick W. Brophy

of counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 17, 2015, which denied plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

The motion court should have considered plaintiff's untimely motion for partial summary judgment on liability under Labor Law § 240 (1), as the sudden death of plaintiff's counsel's mother constituted good cause for the seven-day delay in moving for summary judgment. Nonetheless, the motion must be denied on the merits. While plaintiff made a prima facie showing that his injuries were proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk, defendants-respondents have raised issues of fact as to whether plaintiff "had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured" (Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 10 [1st Dept 2011], quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 10, 2017

CLERK