BLAKE v. NEIGHBORHOOD HOUSING SERVICES OF NEW YORK CITY INC (2003)

Judgment, Supreme Court, Bronx County (Barry Salman, J.), entered on or about August 19, 2002, dismissing the complaint upon a jury verdict in defendant's favor and bringing up for review an order, same court and Justice, entered March 20, 2002, denying plaintiffs' motion to set aside the jury verdict, unanimously affirmed, without costs.   Appeal from the order entered March 20, 2002, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

The trial evidence in this action to recover for construction site injuries pursuant to Labor Law § 240(1), demonstrated that plaintiff, the owner of the subcontracting company retained to perform work on residential premises by defendant contractor, was working on his own when the extending ladder he owned and which he selected and erected for the contracted-for work suddenly retracted causing him to fall.   Plaintiff testified that he did not know what caused the ladder to retract, and that the ladder had previously been steady and free from defect.   Under these circumstances, a factual issue was posed as to whether plaintiff's injury was caused by some inadequacy of the ladder or was solely attributable to the manner in which plaintiff used the ladder (see Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709;  Weber v. 1111 Park Ave. Realty Corp., 253 A.D.2d 376, 676 N.Y.S.2d 174).   The jury was entitled to resolve this issue as it did and we perceive no ground upon which its verdict would be susceptible to disturbance (see Niewieroski v. Natl. Cleaning Contrs., 126 A.D.2d 424, 510 N.Y.S.2d 127, lv. denied 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550).

Plaintiff's remaining arguments are unavailing.