Upon the foregoing papers, Edward Scilleppi (Mr. Scilleppi) and Suzanne Scilleppi (collectively, plaintiffs) move, pursuant to CPLR 3212, for summary judgment as to the Labor Law § 240 (1) liability of Metropolitan Transportation Authority (MTA), New York City Transit Authority (NYCTA) and Citnalta Construction Corp./Judlau Contracting Inc., a Joint Venture (Judlau) (originally sued as "Judlau Contracting, Inc.") (collectively, defendants).

Plaintiffs commenced this action on December 16, 2010 and alleged that [*2]defendants violated Labor Law §§ 200, 240 and 241, as well as various provisions of the New York Industrial Code, which resulted in plaintiff's injury.^[FN3] Plaintiffs asserted that defendants' failure to ensure that tower sections were properly secured when hoisted caused the accident. A September 26, 2011 bill of particulars indicated that Mr. Scilleppi suffered, among other injuries, a shattered left ankle and fractured left tibia and fibula.

Plaintiffs now seek summary judgment as to defendants' liability under Labor Law § 240 (1).^[FN4] They emphasize that the construction superintendent, Christopher Dugan (Dugan), testified that the safe work plan approved by MTA stipulated that a lull equipped with a "stinger" or fixed boom be used to raise jacking tower sections, but that Dugan, Ferra and the lull operator, Sheldon Williams, each testified that the lull had no stinger or other securing device when the accident occurred. Plaintiffs also stress that Judlau's accident report identified, as a "PHYSICAL CONDITION [that] may have contributed to the accident," that the "Section of the Tower was not secured/pinned to the fork." Plaintiffs thus contend that defendants' failure to provide some securing device violated Labor Law § 240 (1) and caused Mr. Scilleppi injury.

Defendants, in opposition, argue that the relatively mild nature of Mr. Scilleppi's injuries contradict his deposition testimony that an 800-1000 pound section of jacking tower fell between 7 and 10 feet onto his leg. Consequently, defendants urge, factual questions exist regarding whether the accident occurred as plaintiffs allege.

Defendants support their opposition with the affidavit of Leon Kazarian (Kazarian), a biomechanical engineer. Kazarian opines that, if an 800-1000 pound section of jacking tower had fallen 7 to 10 feet onto Mr. Scilleppi's leg, as Mr. Scilleppi testified, his leg would have suffered "severe deformation, misalignment and angulation with extensive tissue damage." Instead, Kazarian asserts, Mr. Scilleppi suffered only a fractured tibia. Kazarian further opines that the nature of the fracture is "not consistent with plaintiff's description of how the accident happened, i.e., an impact of a heavy object from above." Kazarian concludes by asserting that "[t]here is a complete absence of clinical or biomechanical signs that an accelerating 800-1000 pound object fell from above and impacted the plaintiff's tibial shaft." Kazarian's affidavit purports to have been executed in Greene County, New York, but was notarized by an Ohio notary and does not include any CPLR 2309 (c) certificate of compliance.

Defendants additionally support their opposition with the affidavit of John F. Waller, M.D. (Dr. Waller), a New York-licensed orthopedist. Dr. Waller offers an opinion essentially the same as, and largely verbatim of, Kazarian's. He concludes by stating:

"It is my opinion, to a reasonable degree of medical certainty, that the plaintiff's accident did not happen the way plaintiff said it happened. An 800-1000 pound object falling 7-10 feet onto a person's leg would result in a devastating injury to the extremity, most likely including traumatic amputation of the extremity. A [sic] the very least there would be [*3]massive tissue damage with a severe crush injury."

Plaintiffs reply that defendants offer no evidence to contradict the facts of the accident as asserted by Mr. Scilleppi, Ferra, Williams and Dugan, as well as accident reports generated by MTA and Judlau. They argue that defendants' expert affidavits must be disregarded as defendants never provided plaintiffs with an expert disclosure regarding Kazarian, though discovery is now complete, and failed to disclose that Dr. Waller would opine as to the accident's causation. Plaintiffs also characterize the expert affidavits as speculative, conclusory and unsupported by the record as each expert seems to base his opinion entirely on Mr. Scilleppi's estimations of the tower section's weight and the distance it fell rather than on any more precise data. Mr. Scilleppi's injury, plaintiffs urge, is consistent with a tower section laterally striking and pinning his leg to the tower. Plaintiffs further stress that the expert affidavits contradict defendants' accident reports, which plaintiffs urge should be treated as party admissions. Plaintiffs conclude that no question exists that an improperly hoisted object fell and injured Mr. Scilleppi and assert that "even if there is some doubt concerning the precise distance the object fell, the angle at which it descended or the mechanics of the fall, absolutely [sic] liability under Labor Law § 240(1) has been established."

A summary judgment movant must show prima facie entitlement to judgment as a matter of law by producing sufficient admissible evidence demonstrating the absence of any material factual issues (CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such a showing requires denying the motion regardless of the sufficiency of any opposition (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). The opposing party overcomes the movant's showing only by introducing "evidentiary proof in admissible form sufficient to require a trial of material questions" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega, 18 NY3d at 503). Nevertheless, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a summary judgment motion (Zuckerman, 49 NY2d at 562; see also Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 934 [1999]; A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 33 [1998], rearg denied 92 NY2d 920 [1998]). Accordingly, a conclusory or speculative expert opinion cannot raise a triable factual question (see Donnelly v St. Agnes Cathedral Sch., 106 AD3d 773, 774 [2013]; DiGeronimo v Fuchs, 101 AD3d 933, 936 [2012]; Masotto v Leddy, 18 AD3d 452, 452-53 [2005]; Samuel v Aroneau, 270 AD2d 474, 475 [2000], lv denied 95 NY2d 761 [2000]).

Labor Law § 240 (1) states, in relevant part:

"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." [*4]

This statute " imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards'" (Bin Gu v Palm Beach Tan, Inc., 81 AD3d 867, 868 [2011], quoting Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]). A defendant bears liability where a plaintiff demonstrates that the defendant violated the statute and that the violation proximately caused the plaintiff injuries (Probst v 11 W. 42 Realty Invs., LLC, 106 AD3d 711, 711-12 [2013]; Godoy v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 104 AD3d 646, 647 [2013]). A § 240 (1) plaintiff makes a prima facie showing of a defendant's liability by establishing that the absence of proper safety equipment resulted in an elevation-related injury (see Probst, 106 AD3d at 712; Durando v City of New York, 105 AD3d 692, 695 [2013]; Godoy, 104 AD3d at 647; Lopez-Dones v 601 W. Assoc., LLC, 98 AD3d 476, 478-79 [2012]; see also Ortega v City of New York, 95 AD3d 125, 128 [2012]).

Here, plaintiffs make a prima facie showing of defendants' § 240 (1) liability by demonstrating that defendants failed to ensure the use of proper safety equipment, namely, a stinger or some device to secure tower sections to the lull's fork, and that this failure caused Mr. Scilleppi to suffer an elevation-related injury when a tower section fell off the lull and struck him. Defendants, in opposition, fail to raise any factual issues that could relieve them of liability in these circumstances.

Although defendants' failure to properly disclose Kazarian as an expert witness does not necessarily bar consideration of his opinion (see Hayden v Gordon, 91 AD3d 819, 820 [2012]; Browne v Smith, 65 AD3d 996, 997 [2009]; cf. Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-91 [2011]), Kazarian's affidavit is inadmissible as it was either notarized by an Ohio notary in New York or notarized in Ohio without an accompanying certificate of compliance (see CPLR 2309 [a], [c]; Real Property Law § 298).

Furthermore, even were Kazarian's affidavit admissible, neither his opinion nor Dr. Waller's presents any opinion or evidence that precludes granting summary judgment. Both of defendants' experts opine, essentially, that Mr. Scilleppi would have suffered an even graver injury than he actually did had an 800-1000 pound object dropped 7 to 10 feet directly onto his leg. Kazarian and Dr. Waller, in rendering this opinion, seemingly rely exclusively on Mr. Scilleppi's estimations of the weight of the tower pieces and the distance they fell. Defendants' experts may, therefore, raise questions as to the accuracy of Mr. Scilleppi's estimations of the weights and distances involved, but they fail to refute the accounts of all witnesses, as well as Judlau's accident report, which indicate that an improperly secured tower section fell while being hoisted and injured Mr. Scilleppi. Whether the improperly hoisted object weighed 100 pounds or 1000 pounds, whether it fell 5 feet or 10 feet, and whether it fell straight down or at an angle are all issues that have no bearing on defendants' § 240 (1) liability. Plaintiffs' showing that defendants' failure to ensure proper hoisting procedures caused Mr. Scilleppi's injuries thus remains effectively uncontested. Accordingly, it is

ORDERED that plaintiffs' motion for summary judgment as to defendants' Labor Law § 240 (1) liability is granted in its entirety.

This constitutes the decision, order and judgment of the court.

E N T E R, [*5]

J. S. C.