In Strojek v. 33 E. 70th St. Corp. (App. Div. 1st Dept. May 14, 2015), a personal injury / construction accident case, the Appellate Division, First Department unanimously affirmed partial summary judgment on the issue of liabilty for plaintiff on his Labor Law § 240(1) cause of action.
The court held:
Plaintiff established his entitlement to judgment as a matter of law on the issue of liability in this action where he sustained injuries when, while performing asbestos removal work in a building owned by defendant, he fell from a baker’s scaffold. Plaintiff’s testimony that he was standing on the scaffold working, and then woke up on the ground with the scaffold tipped over near him, established a prima facie violation of the statute and that such violation proximately caused his injuries. That plaintiff could not remember how he fell does not bar summary judgment. Nor does the fact that he was the only witness raise an issue as to his credibility where, as here, his proof was not inconsistent or contradictory as to how the accident occurred, or with any other evidence.
Defendant failed to raise a triable issue of fact, where its “expert’s measurements were based on his inspection of the premises almost three years after the accident and asbestos removal work”, and its “expert’s conclusion that the scaffold tipped over because plaintiff was trying to move it while remaining on it and by using the wall or ceiling as leverage, is speculative and unsupported by the evidence.”