Opinion
12-01-2016
Robert FLETCHER, Jr., Plaintiff–Appellant, v. BROOKFIELD PROPERTIES, et al., Defendants–Respondents.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant. Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for respondents.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for respondents.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 15, 2016, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff established his entitlement to partial summary judgment on his Labor Law § 240(1) claim through witnesses' testimony that the ladder from which he was descending suddenly kicked out to the left, resulting in his fall (see Fanning v. Rockefeller Univ., 106 A.D.3d 484, 964 N.Y.S.2d 525 [1st Dept.2013] ). Contrary to the motion court's finding, plaintiff was not required to demonstrate that the ladder was defective in order to satisfy his prima facie burden (see Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524, 526, 988 N.Y.S.2d 58 [1st Dept.2014] ; Fanning, at 485, 964 N.Y.S.2d 525 ).
In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident. Plaintiff was not responsible for setting up the ladder, and there was no testimony establishing the existence of any other readily available, adequate safety devices at the work site (see Caceres v. Standard Realty Assoc., Inc., 131 A.D.3d 433, 15 N.Y.S.3d 338 [1st Dept.2015], appeal dismissed 26 N.Y.3d 1021, 20 N.Y.S.3d 333, 41 N.E.3d 1149 [2015] ; Gove v. Pavarini McGovern, LLC, 110 A.D.3d 601, 602, 973 N.Y.S.2d 617 [1st Dept.2012] ; Figueiredo v. New Palace Painters Supply Co. Inc., 37 A.D.3d 363, 830 N.Y.S.2d 546 [1st Dept.2007] ). Furthermore, given the undisputed testimony that the ladder kicked out because it was unsecured, the testimony that plaintiff unsafely descended from the ladder by carrying pipe fittings in his arms established, at most, “contributory negligence, a defense inapplicable to a Labor Law § 240(1) claim” (Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402, 403, 963 N.Y.S.2d 14 [1st Dept.2013] ; see Diaz v. City of New York, 110 A.D.3d 577, 578, 973 N.Y.S.2d 210 [1st Dept.2013] ).
TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, KAHN, JJ., concur.