| Taopanta v 1211 6th Ave. Prop. Owner, LLC. |
| 2023 NY Slip Op 00385 [212 AD3d 566] |
| January 26, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Jorge Fares Taopanta, Appellant, v 1211 6th Avenue Property Owner, LLC., et al., Respondents. Benchmark Builders, Inc., Third-Party Plaintiff-Respondent, v Liberty Contracting Corp., Third-Party Defendant-Respondent. |
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Bartlett LLP, Central Islip (Anne Marie Garcia of counsel), for 1211 6th Avenue Property Owner, L.L.C. and others, respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Liberty Contracting Corp., respondent.
Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered July 9, 2021, which denied plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim, unanimously reversed, on the law, without costs, and plaintiff's motion granted.
Plaintiff was injured while he and two coworkers were disposing of construction debris, including a glass and metal door, by lifting it into a truck by hand when the door fell, causing plaintiff's hand to be crushed between the door and the lip of the truck. As a result of the accident, plaintiff's finger was severed from his hand. Plaintiff testified that there were no hoists, forklifts, or other lifting devices on the work site, and that the door fell because it was too heavy for him and his coworkers to hold up without such a device. Plaintiff further testified that he knew that the door weighed about 300 pounds because he could lift 100 pounds by himself, but that he and his coworker were unable to lift it together.
The affidavit of his employer's foreman, who admittedly did not witness the accident,
did not dispute most of the facts relevant to plaintiff's claim. The foreman's affidavit
failed to raise a question of fact as to the door's weight, since he did not provide any
basis for his bare claim that the door weighed about 100-120 pounds and could easily be
lifted by two workers without the use of a hoist or forklift. Furthermore, the precise
weight of the door, whether it fell from a height of 7 feet or 3