General
Joseph McManus, Respondent, v. City of New York, Appellant
142 A.D.3d 91837 N.Y.S.3d 883·New York Supreme Court, Appellate Division·2016·NY
Concur — Mazzarelli, J.P., Acosta, Saxe, Moskowitz and Gesmer, JJ. [Prior Case History: 2015 NY Slip Op 31176(U).]
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Opinion
Joseph McManus, Respondent, v City of New York, Appellant.
[37 NYS3d 883]
[MAJORITY]
Order, Supreme Court, Bronx County
(Fernando Tapia, J.), entered June 11, 2015, which, to the extent appealed from as limited by the briefs, granted plaintiff’s motion for partial summary judgment on the issue of defendant’s Labor Law § 240 (1) liability, unanimously reversed, on the law, without costs, and plaintiff’s motion denied.
Summary judgment on the Labor Law § 240 (1) claim was inappropriate, because questions of fact exist concerning whether a scaffold purportedly covering the opening of the flocculation tank through which plaintiff fell was a proper and adequate safety device (see Ortega v City of New York, 95 AD3d 125, 128 [1st Dept 2012]) and whether, if the scaffold was an adequate safety device, plaintiff removed the device by moving it away from the opening (see Boyd v Schiavone Constr. Co., Inc., 106 AD3d 546, 548 [1st Dept 2013]).
Concur — Mazzarelli, J.P., Acosta, Saxe, Moskowitz and Gesmer, JJ. [Prior Case History: 2015 NY Slip Op 31176(U).]