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Norberto APONTE, Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants-Appellants, New York City School Construction Authority, et al., Defendants.
Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 7, 2007, which granted plaintiff's motion for partial summary judgment on the issue of liability on his cause of action under Labor Law § 240(1) as against defendants City of New York and City of New York Department of Design and Construction, and denied such motion as against defendant O'Brien Kreitsberg, Inc. (OBK), unanimously affirmed, without costs.
Defendants' failure to provide adequate safety devices and to properly secure the ladder was a contributing cause of the accident. Plaintiff's conduct, at most, constituted comparative negligence, which is not a defense under Labor Law § 240(1) (see Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 780 N.Y.S.2d 558 [2004]; Orellano v. 29 E. 37th St. Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16 [2002] ).
Regarding the court's denial of plaintiff's motion for partial summary judgment as against OBK, the “construction manager” for the project, plaintiff did not cross-appeal from this ruling (see CPLR 5515). In any event, given the existence of factual issues concerning the scope of the construction manager's oversight and control of the work, the motion court's ruling was appropriate (see e.g. Walls v. Turner Constr. Corp., 4 N.Y.3d 861, 863-864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005] ).
We have considered defendants' remaining contentions, including that the motion was premature in light of the need for further discovery, and find them unavailing. Plaintiff's request to strike material from the record on appeal is denied.
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Decided: October 30, 2008
Court: Supreme Court, Appellate Division, First Department, New York.
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