Opinion
2003-225 K C.
Decided December 22, 2003.
Appeal by plaintiff from an order of the Civil Court, Kings County (A. Schack, J.), entered December 10, 2002, denying his motion for partial summary judgment against defendant Isabel Fish Mfg. Co. Inc.
Order unanimously reversed without costs and plaintiff's motion for partial summary judgment as against defendant Isabel Fish Mfg. Co. Inc. on the issue of liability upon plaintiff's Labor Law § 240 (1) cause of action granted.
PRESENT: PESCE, P.J., ARONIN and PATTERSON
In this personal injury action pursuant, inter alia, to Labor Law § 240 (1), plaintiff moved for partial summary judgment against Isabel Fish Mfg. Co. Inc. (Isabel) upon the issue of liability. Plaintiffs affidavit, submitted in support of his motion, made out a prima facie violation of that section, as it established that the ladder plaintiff was using was not "so . . . placed and operated as to give proper protection" to plaintiff ( see e.g. Wasilewski v. Museum of Modern Art, 260 AD2d 271). The fact that plaintiff had an assistant to hold the ladder is immaterial. According to plaintiffs unrebutted testimony, the ladder wobbled so as to cause him to fall. Moreover, plaintiff stated in his affidavit that he had no choice but to place the ladder with two of its legs upon an unstable piece of steel. This unrebutted testimony demonstrates that the ladder and assistant were not sufficient to discharge the nondelegable duty of the owner of the premises, Isabel, under the statute, which was "designed to place the responsibility for a worker's safety squarely upon the owner and contractor rather than on the worker" ( Felker v. Corning Inc., 90 NY2d 219, 224; see generally Zimmer v. Chemung County Performing Arts, 65 NY2d 513).
Nor did plaintiff have any obligation to demonstrate that the ladder was defective ( see Bonanno v. Port Auth. of N.Y. and N.J., 298 AD2d 269). While it is true that a fall from a non-defective ladder, without more, is insufficient to establish a violation of Labor Law § 240 (1) ( see Costello v. Hapco Realty, 305 AD2d 445), where, as here, the ladder itself failed to provide the required degree of protection to plaintiff because it was not properly placed and secured, its own apparent lack of defect is not a defense (see Klein v. City of New York, 89 NY2d 833 [ladder slipped due to condition of floor]; Scotti v. Federation Dev. Corp., 289 AD2d 322 [ladder "kicked out" from either uneven flooring or debris at its base]).