Opinion
14659 Index No. 36182/17E Case No. 2020–04829
11-18-2021
Julio RODRIGUEZ, Plaintiff–Appellant, v. MILTON BORON, LLC, Defendant–Respondent. [and Other Third-party Actions]
Ginarte Gallardo Gonzalez & Winograd, LLP, New York (Joel Celso of counsel), for appellant. Fullerton Beck LLP, White Plains (Edward J. Guardaro, Jr. of counsel), for respondent.
Ginarte Gallardo Gonzalez & Winograd, LLP, New York (Joel Celso of counsel), for appellant.
Fullerton Beck LLP, White Plains (Edward J. Guardaro, Jr. of counsel), for respondent.
Kapnick, J.P., Webber, Oing, Moulton, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 10, 2020, which, to the extent appealed from, denied plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim and granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, plaintiff's motion granted, and defendant's motion denied.
Plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim by submitting proof that he fell from an unsecured A-frame ladder that suddenly moved as he was reaching overhead to hardwire a new smoke and carbon monoxide detector to replace an inoperable hardwired smoke detector that he had just removed (see Estrella v. GIT Indus., Inc., 105 A.D.3d 555, 555, 963 N.Y.S.2d 110 [1st Dept. 2013] ; Sacko v. New York City Housing Auth., 188 A.D.3d 546, 132 N.Y.S.3d 611 [1st Dept. 2020] ). Plaintiff's proof established that the work constituted a repair within the protections of Labor Law § 240(1) and not merely routine maintenance (see Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524, 526–527, 988 N.Y.S.2d 58 [1st Dept. 2014] ; Piccione v. 1165 Park Ave., Inc., 258 A.D.2d 357, 357, 685 N.Y.S.2d 242 [1st Dept. 1999], lv dismissed 93 N.Y.2d 957, 694 N.Y.S.2d 634, 716 N.E.2d 699 [1999] ).
In opposition, defendant offered evidence which attempted to show the ladder was not defective and was an adequate safety device for the task undertaken, was insufficient to overcome plaintiff's prima facie case (see Estrella, 105 A.D.3d at 555, 963 N.Y.S.2d 110 ). Further, no view of the evidence exists to support defendant's contention that plaintiff was the sole proximate cause of his injuries (see Sacko v. New York City Hous. Auth., 188 A.D.3d 546, 547, 132 N.Y.S.3d 611 [1st Dept. 2020] ; Dwyer v. Central Park Studios, Inc., 98 A.D.3d 882, 884, 951 N.Y.S.2d 16 [1st Dept. 2012] ).