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HERNANDEZ v. 767 FIFTH PARTNERS, LLC

104645/11. 590360/12. 155452/13. Appeal No. 14519. Case No. 2021-00097.

199 A.D.3d 484 (2021)

154 N.Y.S.3d 415

2021 NY Slip Op 06323

Tommy Hernandez, Appellant, v. 767 Fifth Partners, LLC, et al., Defendants. 767 Fifth Partners, LLC, et al., Third-Party Plaintiffs, v. J.P. Phillips, Inc., Third-Party Defendant-Respondent. (And a Second Third-Party Action.)

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

Decided November 16, 2021.

Attorney(s) appearing for the Case

Jonathan D'Agostino & Associates, P.C., Staten Island ( Glen Devora of counsel), for appellant.

Hardin Kundla McKeon & Poletto, P.A., New York ( Stephen J. Donahue of counsel), for J.P. Phillips, Inc., respondent.

Concur— Renwick, J.P., González, Kennedy, Scarpulla, Rodriguez, JJ.

Plaintiff made a prima facie showing of entitlement to partial summary judgment on his Labor Law § 240(1) claim where the platform of the Baker scaffold he was standing upon fell through its frame to the ground (see Gomez v Trinity Ctr. LLC, 195 A.D.3d 502 [1st Dept 2021]). Conflicting facts as to why the scaffold collapsed are irrelevant because whether the scaffold fell due to a worn platform or an unfixed pin, proper protection was not provided to plaintiff...

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