Opinion
2014-01-8
Satnam SINGH, et al., appellants-respondents, v. CITY OF NEW YORK, et al., respondents-appellants.
Andrea & Towsky, Garden City, N.Y. (Frank A. Andrea III of counsel), for appellants-respondents. Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Karen S. Drotzer and Matthew A. Windman of counsel), for respondents-appellants.
Andrea & Towsky, Garden City, N.Y. (Frank A. Andrea III of counsel), for appellants-respondents.Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Karen S. Drotzer and Matthew A. Windman of counsel), for respondents-appellants.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Richmond County (Fusco, J.), dated February 28, 2012, as denied their motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and (2) an order of the same court dated August 12, 2012, as denied their motion for leave to reargue their motion for summary judgment on the issue of liability, and the defendants cross-appeal from so much of the order dated February 28, 2012, as denied that branch of their cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1).
ORDERED that the appeal from the order dated August 12, 2012, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated February 28, 2012, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The injured plaintiff fell from a ladder while performing renovation work in the school library located at P.S. 3 on Staten Island. To make a prima facie showing of liability under Labor Law § 240(1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757). This showing may be made with “evidence that the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries” (Melchor v. Singh, 90 A.D.3d 866, 868, 935 N.Y.S.2d 106; see Canas v. Harbour at Blue Point Home Owners Assn., Inc., 99 A.D.3d 962, 963, 953 N.Y.S.2d 150; Ordonez v. C.G. Plumbing Supply Corp., 83 A.D.3d 1021, 922 N.Y.S.2d 156).
Here, the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the Labor Law § 240(1) cause of action. The mere fact that the injured plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 288, 771 N.Y.S.2d 484, 803 N.E.2d 757; Delahaye v. Saint Anns School, 40 A.D.3d 679, 836 N.Y.S.2d 233; Alava v. City of New York, 246 A.D.2d 614, 615, 668 N.Y.S.2d 624). There are triable issues of fact as to whether the subject ladder was inadequately secured and whether the injured plaintiff's actions were the sole proximate cause of the accident ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 288–289, 771 N.Y.S.2d 484, 803 N.E.2d 757; Schick v. 200 Blydenburgh LLC, 88 A.D.3d 684, 930 N.Y.S.2d 604; Delahaye v. Saint Anns School, 40 A.D.3d at 682, 836 N.Y.S.2d 233). For similar reasons, the defendants failed to establish their prima facie entitlement to judgment as a matter of law on that branch of their cross motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action.
Accordingly, Supreme Court properly denied the motion and cross motion for summary judgment. ENG, P.J., DILLON, SGROI and MILLER, JJ., concur.