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ORTEGA v. CITY OF NEW YORK

114945/08, 5865.

95 A.D.3d 125 (2012)

940 N.Y.S.2d 636

2012 NY Slip Op 2412

CESAR ORTEGA et al., Appellants, v. CITY OF NEW YORK et al., Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided March 29, 2012.

Attorney(s) appearing for the Case

Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone ( Gregory M. LaSpina and Gary E. Rosenberg of counsel), for appellants.

Lester Schwab Katz & Dwyer, LLP, New York City ( Harry Steinberg of counsel), for respondents.

FREEDMAN and MANZANET-DANIELS, JJ., concur with ACOSTA, J.; ANDRIAS, J.P., and SWEENY, J., concur in a separate opinion by SWEENY J.

OPINION OF THE COURT

ACOSTA, J.

At issue in this case is whether a plaintiff seeking summary judgment on his Labor Law § 240 (1) claim must establish as part of his prima facie case that the injury was foreseeable. We hold that a plaintiff is not required to demonstrate that the injury was foreseeable, except in the context of a collapse of a permanent structure (see e.g. Jones v 414 Equities LLC, 57 A.D.3d 65

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