Serrano v. TED General Contractor

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered November 17, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ motion for partial summary judgment on the issue of defendants Eighth Avenue Sky’s (EAS) and TED General Contractor’s (TED) Labor Law 240 (1) liability, unanimously reversed, on the law, without costs, and the motion granted. Cross appeal by TED from so much of the order as made certain findings as to it, unanimously dismissed, without costs.

Plaintiff Pedro Serrano was injured when, during the course of moving sheetrock into a building, he stood on top of a sidewalk shed that broke beneath him, causing him to fall to the sidewalk below. While the motion court correctly determined that these facts demonstrated plaintiffs’ prima facie entitlement to summary judgment (see e.g. Tzic v Kasampas, 93 AD3d 438 , 438-439 [1st Dept 2012]), it erred in finding that EAS raised a triable issue of fact. That no witness other than plaintiff testified as to the occurrence of the accident does not bar judgment in his favor, “where nothing in the record contradicts his version of the [occurrence] or raises an issue as to his credibility” (Ortiz v Burke Ave. Realty, Inc., 126 AD3d 577 , 578 [1st Dept 2015]), and defendant EAS’s expert report was purely speculative in that it was not based on an examination of the sidewalk shed at the time of the accident (Pastabar Café Corp. v 343 E. 8th St. Assoc., LLC, 147 AD3d 583 , 585 [1st Dept 2017]).

We have considered the parties’ remaining arguments and find them unavailing.

Concur—Tom, J.P., Kapnick, Webber and Oing, JJ.