The plaintiff commenced this cause of action against defendant New York City Housing Authority (NYCHA), based on a cause of action alleged to have occurred on the roof of the premises located at 2663 Heath Avenue, Bronx, NY. It is alleged that on October 5, 2012, at approximately 12:00 p.m., while working at the premises, plaintiff slipped and fell from a suspended scaffold, causing personal injuries to plaintiff.Defendant moves for an order pursuant to CPLR 3212, granting defendant summary judgment and dismissing plaintiff’s claims of negligence based on Labor Law sections 200, 240 (1), 241(6), and common law claims of negligence. Defendant contends that plaintiff was provided with adequate safety devices, and that the sole cause of plaintiff’s injuries was the plaintiff’s conduct. Plaintiff opposes the motion, and by notice of cross motion moves for an order awarding plaintiff partial summary judgment on the issue of liability based on Labor Law section 240 (1).The admissible evidence submitted in support of the defendant’s motion consists of the transcripts from the 50-h hearing and the deposition of the plaintiff. Plaintiff waived any objection to the admissibility of: i) the unsigned transcript of the deposition testimony of Avdhesh Patel, who is not a party to this action, as inaccurate, Gomez v. Shop Rite of New Greenway, 110 AD3d 483(1st Dept. 2013); and ii) defendant’s expert Bernard Lorenz, P.E.’s unsworn report, by failing to raise such objections before the motion court. The copies of unsworn statements by non parties Audesh Patel, Jatinder Paul, and Sarabjit Singh are inadmissible. Edkan v. McDonald’s Corp., 146 AD3d 466 (1st Dept. 2017).The admissible evidence submitted in support of plaintiff’s cross motion consists of an expert’s affidavit by Scott Silberman, P.E., and the copies of sworn statements by Faqir Singh and Harbhajan Singh. Albeit in the absence of any objection by the defendant, the court notes that while it is claimed that the statements were translated to Punjabi and read to the plaintiff and the witness, no affirmation of translation was attached to their statements. CPLR 2101, See Welenc v. Board of Directors of Polish and Slavic Federal Credit Union, 160 AD3d 683 (2nd Dept. 2018).At the 50-h hearing, plaintiff, through an interpreter, testified as follows: Plaintiff was employed by Zoria Housing as a bricklayer. On October 5, 2012, plaintiff was working with co-worker Harbhajan Singh on a motorized scaffold at 2608 Bailey Avenue, doing brick pointing on the eighteenth floor, using buckets and cement. On the date of the incident the foreman, Raju, was working on the roof. He told plaintiff to come to the roof for lunch and to take down material from the roof. The scaffold was raised to the twentieth floor. There was no stepladder to the roof. Plaintiff was standing on the parapet when he asked Raju for a ladder. He was not given a ladder. He was about to jump to the roof, when he tripped over the safety line and fell, and the rope tangled over his right leg in the process of falling. Later in the same hearing, plaintiff testified “I want to tell you for sure that I was not standing on the parapet. I was sitting there and my leg was on one side while my left leg was on the one side and I fell on my left side.” Plaintiff testified that his right leg was on the same side as the scaffold, and his left leg was on the side of the roof.At his deposition, plaintiff testified as follows: Plaintiff and a co-worker were on a suspended motorized scaffold, pointing the facade of the premises, a twenty-story building. They were outside the eighteenth floor of the building when he was called to the roof by the foreman, Raju. The scaffold was raised adjacent to a parapet at the level of the roof, and plaintiff asked Raju for a ladder to climb from the scaffold to the roof. Raju told him that he did not have time to bring him a ladder.”There was a railing in front of the scaffold. I put my right leg into that railing and holding the parapet wall with my hands. And since my left leg is very weak, so I have to hold it and take it up, and while I did that and my right leg got stuck in the safety line. It got stuck in the safety line and it was twisted with the safety line.” Plaintiff was siting on the parapet wall; his right leg was on the scaffold side, and his left leg was on the roof side. He lifted his right leg to jump over, it got stuck in the safety line, and he fell onto the roof.Further in the deposition, plaintiff testified as follows: He was standing on the platform of the scaffold and the safety harness slipped and it tightened on his my right knee. His left hand was on the parapet wall for support so he would not fall back on the platform. He was hanging onto the parapet wall. His left leg was on the rail. He was trying to climb to the parapet wall. While trying to jump over to the other side of the roof, he was going to put his left leg first. His left leg was on the rail and he was trying to put his right leg on top but it was stuck. He tried to climb over, and his left leg slipped. He climbed over the wall and tried to climb onto the roof of the building. His left leg was the first to go over the parapet wall. As he was trying to pull his right leg over to the roof the safety harness gripped onto the right knee and it pulled him and then he was pushed onto the roof.Further in the deposition, plaintiff testified as follows: “Both of my legs were on the side of the parapet wall.” ” I had not reached the parapet wall to be able to completely put my leg over.” He was standing with his left leg on the rail, facing the parapet wall, and his leg got stuck in the harness as he was climbing over onto the parapet wall. His right leg was on the floor of the scaffold. Further in the deposition, plaintiff testified that he attempted to climb up a railing on the side of the scaffold; he put his right leg in the railing and held the parapet wall with his left hand so that he would not fall back on the scaffold platform, while tried to climb the parapet wall. Plaintiff’s right leg twisted into the safety line and he fell.By his affidavit of merit, submitted in opposition to defendant’s motion and in support of plaintiff’s cross motion, plaintiff attests he placed one foot on the scaffold railing and one foot on the scaffold motor box to step from the scaffold to the parapet wall. His legs got tangled into a safety line that was attached to his harness, and his body dropped down. He was dangling between the scaffold and the exterior side of the parapet wall.The conflicting accounts within the bodies of plaintiff’s 50-h hearing and deposition testimony, and the inconsistencies between plaintiff’s hearing and deposition testimony preclude summary judgment in favor of defendant. Defendant’s submissions demonstrate an unresolved material, triable issue of fact as to the cause of and the manner in which plaintiff’s injury occurred. Hobbs v. MTA Capital Constr., 159 AD3d 544 (1st Dept. 2018).As to plaintiff’s cross motion, although plaintiff’s expert, Scott Silberman, P.E., concluded, inter alia, that the plaintiff’s injury occurred while he was attempting to step from the scaffold to the top of the parapet wall, his conclusion does not reference the discrepancies in the plaintiff’s 50-h hearing and deposition testimony, as to the manner in which plaintiff was injured.”The inconsistencies in plaintiff’s account of the accident present credibility issues for determination by a fact finder (see Campos v. 68 E. 86th St. Owners Corp., 117 AD3d 593, 594, 988 NYS 2d 1 [1st Dept. 2014]).” Katz v. 260 Park Avenue South Condominium Associates, 168 D3d 615 (1st Dept. 2019).The Court finds on this record that neither party is entitled to summary judgment as a matter of law. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985).Accordingly, based on the record before the Court; the applicable law; and due deliberation; it is herebyORDERED, that the defendant’s motion is denied; and it is furtherORDERED, that the plaintiff’s cross motion is denied; and it is furtherORDERED, the parties will appear for a pre trial conference on May 20, 2019.Dated: April 4, 2019
