By Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ. 10066. Juan Garcia, plf-ap, v. SMJ 210 West 18 LLC def-res, Bay Bridge Enterprises LT def — SMJ 210 West 18 LLC Third-Party Plaintiffs, v. S&E Bridge & Scaffold LLC, Third-Party def-res — [And a Second Third-Party Action] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for ap — Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York (Benjamin Gonson of counsel), for SMJ 210 West 18 LLC, res — Wood Smith Hennig and Berman, LLP, New York (Patrick James of counsel), for JM3 Construction LLC, res — Cascone & Kluepfel, LLP, Garden City (James K. O’Sullivan of counsel), for S&E Bridge & Scaffold LLC, res — Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 30, 2018, which, to the extent appealed from, denied plaintiff’s motion for partial summary judgment on his Labor Law §240(1) claim, and granted the cross motions of defendants-respondents for summary judgment dismissing plaintiff’s claims under Labor Law §§240(1) and 241(6), unanimously reversed, on the law, without costs, plaintiff’s motion granted and defendants-respondents’ cross motions denied. The record reflects that plaintiff was on a temporary exterior platform on the 21st floor of a building under construction, when he was struck and injured by a falling piece of DensGlass, an exterior sheetrock material, which matched the size of a missing piece of sheetrock one floor above. Plaintiff was in the process of dismantling the bridge that was linked to the exterior hoist elevator. Plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his Labor Law §240(1) claim based on the record evidence that a piece of the exterior facade of the building still under construction fell on him, that workers were performing patch work to the DensGlass on the floors above plaintiff, and that the exterior facade was not complete (see Hill v. Acies Group, LLC, 122 AD3d 428 [1st Dept 2014). Furthermore, defendants' cross motions for summary judgment dismissing the §241(6) claim should have been denied because there is a triable issue of fact as to whether the area where the accident occurred was "normally exposed to falling material or objects" requiring that plaintiff be provided with "suitable overhead protection" (see 12 NYCRR 23-1.7[a][1]; Clarke v. Morgan Contr. Corp., 60 AD3d 523, 524 [1st Dept 2009]). This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Richter, J.P., Manzanet-Daniels, Gische, Webber, Kern, JJ. 10404. In re E.D., pet-ap, v. T.D., res-res — Blank Rome LLP, New York (Brett S. Ward of counsel), for ap — Marzano Lawyers PLLC, New York (Naved Amed of counsel), for res — Order, Family Court, New York County (Jonathan H. Shim, J.), entered on or about March 28, 2019, which denied petitioner mother’s objection to an order, same court (Support Magistrate Lewis A. Borofsky), entered on or about April 4, 2018, which, after a trial, dismissed her petition for downward modification of child support, unanimously affirmed, without costs. We accord great deference to the findings of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence presented (Matter of Minerva R. v. Jorge L.A., 59 AD3d 243 [1st Dept 2009]). The Family Court properly found that the mother failed to produce evidence substantiating her testimony about the extent to which the parties’ son’s medical care impacted upon her ability to seek employment. A court is not required, in evaluating grounds for modification, to accept a parent’s testimony that he or she is prevented from working (see e.g. Matter of Angela B. v. Gustavo D., 150 AD3d 471 [1st Dept 2017]; Matter of Elyorah E. v. Ian E., 127 AD3d 449 [1st Dept 2015]; Matter of Virginia S. v. Thomas S., 58 AD3d 441 [1st Dept 2009]; Matter of Maria T. v. Kwame A., 35 AD3d 239 [1st Dept 2006]). We have considered the mother’s remaining arguments and find them unavailing. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
