Gomez v City of New York
2009 NY Slip Op 04759 [63 AD3d 511]
June 11, 2009
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 5, 2009

Leonidas Gomez, Appellant,
City of New York et al., Defendants, and Mr. Storeworks, LP, et al., Respondents.

[*1] Broder & Reiter, New York (Glenn A. Herman of counsel), for appellant.

Gallo Vitucci & Klar LLP, New York (Kimberly A. Ricciardi of counsel), for respondents.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 14, 2008, granting defendants-respondents' motion for reargument of an order entered on or about October 31, 2007 granting plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action, which, to the extent appealed from as limited by the brief, upon reargument, recalled and vacated its prior order and denied plaintiff's motion, unanimously reversed, on the law, without costs, and plaintiff's motion granted.

Plaintiff was injured when he fell two stories when the fire escape on which he was working detached from the building and fell to the ground. Plaintiff established a prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240 (1) claim by showing that the subject fire escape was the functional equivalent of a scaffold and failed to provide adequate protection for the elevation-related work he was performing (see De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 950 [2003]). The evidence shows that it was necessary for plaintiff to stand on the exterior fire escape to remove a window on the third floor of the building where he was performing demolition work and where the ceiling and floor between the second and third floors had already been removed. The fact that the fire escape was a permanent rather than a temporary structure does not warrant a different determination (id.). In [*2]opposition, respondents failed to raise a triable issue of fact regarding the manner in which the accident occurred. Concur—Tom, J.P., Nardelli, Catterson, Renwick and Richter, JJ.