Opinion
2012-05-10
Angel CARCHIPULLA, Plaintiff–Respondent, v. 6661 BROADWAY PARTNERS, LLC, Defendant–Appellant, Gavino Construction Corp., Defendant.
Kral Clerkin Redmond Ryan Perry & Van Etten LLP, Melville (James V. Derenze of counsel), for appellant. Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent.
Kral Clerkin Redmond Ryan Perry & Van Etten LLP, Melville (James V. Derenze of counsel), for appellant. Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent.
TOM, J.P., ANDRIAS, CATTERSON, ACOSTA, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered October 20, 2011, which denied defendant's motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion for partial summary judgment on the issue of liability under Labor Law § 240(1), unanimously affirmed, without costs.
Plaintiff established his prima facie entitlement to summary judgment by showing that defendant's failure to provide an adequate safety device enumerated in Labor Law § 240(1) proximately caused him to fall off a ladder, injuring him ( see Orellano v. 29 E. 37th St. Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16 [2002] ). Plaintiff was not required to present evidence of a specific structural defect in the ladder ( see Lipari v. AT Spring, LLC, 92 A.D.3d 502, 503–504, 938 N.Y.S.2d 303 [2012];Orellano, 292 A.D.2d at 290–291, 740 N.Y.S.2d 16). Contrary to defendant's unpreserved contention, there is no triableissue of fact about whether plaintiff's negligence was the sole proximate cause of the accident, given that there is no evidence that he fell because he simply lost his footing ( see Ervin v. Consolidated Edison of N.Y., 93 A.D.3d 485, 940 N.Y.S.2d 223 [2012];Lipari, 92 A.D.3d at 504, 938 N.Y.S.2d 303). Rather, plaintiff's uncontradicted testimony was that the ladder shook and fell while plaintiff was standing on it.
Defendant failed to preserve its arguments that the court should have dismissed plaintiff's common law negligence and Labor Law §§ 200 and 241(6) claims. In any event, defendant's contentions regarding those claims are academic in light of the grant of plaintiff's cross motion for partial summary judgment on liability ( see Henningham v. Highbridge Community Hous. Dev. Fund Corp., 91 A.D.3d 521, 522, 938 N.Y.S.2d 1 [2012];Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 12, 917 N.Y.S.2d 130 [2011] ).