Opinion
03-15-2017
Marc MESSINA, Plaintiff–Appellant–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Respondents–Appellants.
Hogan & Cassell, LLP, Jericho (Michael D. Cassell of counsel), for appellant-respondent. Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for respondents-appellants.
Hogan & Cassell, LLP, Jericho (Michael D. Cassell of counsel), for appellant-respondent.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for respondents-appellants.
SWEENY, J.P., RENWICK, MAZZARELLI, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered April 27, 2016, insofar as it denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, and denied defendants' cross motion for summary judgment dismissing the Labor Law § 240(1) claim, unanimously modified, on the law, to grant plaintiff's motion, and otherwise affirmed, without costs. The appeal from said order, to the extent it denied defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23–1.21(b)(4)(iv), unanimously dismissed, without costs, as academic.
Plaintiff established his entitlement to partial summary judgment on the Labor Law § 240(1) claim through his testimony that he was injured when the A–frame ladder on which he was standing moved underneath him as he applied pressure to it while trying to remove part of the drop ceiling he was demolishing (see Hill v. City of New York, 140 A.D.3d 568, 570, 35 N.Y.S.3d 307 [1st Dept.2016] ; Ausby v. 365 W. End LLC, 135 A.D.3d 481, 22 N.Y.S.3d 824 [1st Dept.2016] ). Plaintiff was not required to show that the ladder was defective or that he actually fell off the ladder to satisfy his prima facie burden (see Hill, 140 A.D.3d at 570, 35 N.Y.S.3d 307 ; Reavely v. Yonkers Raceway Programs, Inc., 88 A.D.3d 561, 565, 931 N.Y.S.2d 579 [1st Dept.2011] ).
Defendants failed to raise a triable issue of fact whether plaintiff was the sole proximate cause of the accident. There is no testimony in the record as to whether there were other readily available, adequate safety devices at the accident site that plaintiff declined to use (see Gove v. Pavarini McGovern, LLC, 110 A.D.3d 601, 973 N.Y.S.2d 617 [1st Dept.2013] ). Moreover, the evidence establishes that the ladder twisted underneath plaintiff because it was unsecured, not because he misused it, and that defendants provided no other safety devices for his use. At most, plaintiff's application of pressure to the ladder while engaged in the work he was directed to do, which caused it to twist, was comparative negligence, no defense to a section 240(1) claim (Hill, 140 A.D.3d at 570, 35 N.Y.S.3d 307 ; Noor v. City of New York, 130 A.D.3d 536, 541–542, 15 N.Y.S.3d 13 [1st Dept.2015], lv. dismissed 27 N.Y.3d 975, 31 N.Y.S.3d 451, 50 N.E.3d 919 [2016] ). "Regardless of the method employed by plaintiff to remove [the drop ceiling], the ladder provided to him was not an adequate safety device for the task he was performing" (Carino v. Webster Place Assoc., LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60 [1st Dept.2007] ).
In view of the foregoing, the Labor Law § 241(6) claim is academic (see Howard v. Turner Constr. Co., 134 A.D.3d 523, 21 N.Y.S.3d 251 [1st Dept.2015] ).