Kujawski & Kujawski, Deer Park (Mark C. Kujawski of counsel), for appellant.

Baxter Smith & Shapiro, P.C., Hicksville (Dennis S. Heffernan of counsel), for respondents.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered October 30, 2020, which, to the extent appealed from as limited by the briefs, granted defendants Turner Construction Company and Dormitory Authority of the State of New York's motion for summary judgment dismissing the Labor Law § 240 (1) cause of action as against them and denied plaintiff's cross motion for partial summary judgment on that cause of action, unanimously modified, on the law, to deny defendants' motion for summary judgment dismissing the Labor Law § 240 (1) claim as against them, and otherwise affirmed, without costs.

As the motion court found, plaintiff failed to raise a genuine issue of fact in opposition to defendants' motion. Plaintiff's affidavit indicates that he was standing on top of a makeshift apparatus positioned three feet above the floor at the time of the accident. This affidavit directly contradicts his prior deposition testimony in which he repeatedly testified that he was standing on the floor at the time of the accident and never mentioned standing on the apparatus (see Vila v Foxglove Taxi Corp., 159 AD3d 431, 431 [1st Dept 2018]).

We find however, that there is an issue of fact as to whether the heavy carpet and pipe, which were estimated to weigh a total of 275 pounds, resting approximately three feet above the floor, posed "a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see e.g. Marrero v 2075 Holding Co. LLC, 106 AD3d 408, 409 [1st Dept 2013]). Concur—Webber, J.P., Mazzarelli, González, Scarpulla, Pitt, JJ. [Prior Case History: 2020 NY Slip Op 33581(U).]