Opinion
12260 Index No. 304599/15 Case No. 2019-03632
11-05-2020
Gustavo RIVAS, Plaintiff-Respondent, v. NESTLE REALTY HOLDING CORP., et al., Defendants-Appellants, Trillium Image Corp., Defendant.
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place (John E. McLoughlin of counsel), for appellants. Oresky & Associates, PLLC, Bronx (Joshua E. Goldblatt of counsel), for respondent.
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place (John E. McLoughlin of counsel), for appellants.
Oresky & Associates, PLLC, Bronx (Joshua E. Goldblatt of counsel), for respondent.
Gische, J.P., Webber, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 5, 2019, which granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff met his initial burden of proof by submitting evidence that he fell to the ground when he placed his foot on the top step of a recently constructed stairway leading to the elevated deck where he was to perform his work. He testified that the stairway was the sole means of access to his work area. According to plaintiff, the stairway was unfinished and lacked handrails and supports under each step. Plaintiff testified that the top step became detached from the stairway. This testimony establishes prima facie that defendants failed to provide plaintiff with a proper elevation-related safety device, in violation of Labor Law § 240(1), and that this violation proximately caused plaintiff's injuries (see Conlon v. Carnegie Hall Socy., Inc. , 159 A.D.3d 655, 70 N.Y.S.3d 833 [1st Dept. 2018] ; Gory v. Neighborhood Partnership Hous. Dev. Fund Co., Inc. , 113 A.D.3d 550, 979 N.Y.S.2d 314 [1st Dept. 2014] ). In opposition, defendants failed to raise an issue of fact as to whether the stairway was the sole means of access to the elevated deck. Plaintiff's use of a ladder on a previous occasion does not raise an issue of fact because defendant failed to submit sufficient evidence showing that a ladder or other safety device was readily available on the day of the accident or that a ladder was an adequate safety device for the job (see Noor v. City of New York , 130 A.D.3d 536, 539–540, 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] ).
Defendants also failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident, given the undisputed failure of the stairway to protect him (see Blake v. Neighborhood Hous. Servs. of N.Y. City , 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ["Under Labor Law § 240(1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury"]; DeRose v. Bloomingdale's Inc., 120 A.D.3d 41, 45, 986 N.Y.S.2d 127 [1st Dept. 2014] ).