NUNEZ v. SY PROSPECT LLC (2024)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 30, 2023, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment as to liability against defendant/third-party plaintiff SY Prospect LLC on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1).  Plaintiff's testimony established that he was assigned to work on a ladder to caulk and paint a stairwell;  that SY Prospect, the owner of the building where plaintiff was working, failed to provide any safety devices or assistance to ensure the stability of the ladder;  and that plaintiff fell when the ladder abruptly shook (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 [2003];  Sacko v. New York City Hous. Auth., 188 A.D.3d 546, 546–547, 132 N.Y.S.3d 611 [1st Dept. 2020]).

In opposition, SY Prospect and third-party defendant JJ Industries N.Y. Inc., the entity SY Prospect contracted with to perform painting work at its building, failed to raise an issue of fact as to whether plaintiff's conduct was the sole proximate cause of his injuries (see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004];  Kosavick v. Tishman Constr. Corp. of N.Y., 50 A.D.3d 287, 288, 855 N.Y.S.2d 433 [1st Dept. 2008]).  They did not present any evidence that appropriate safety equipment was available to secure the ladder or prevent a fall, nor did they refute plaintiff's testimony that he was not provided with any safety devices (see Castillo v. TRM Contr. 626, LLC, 211 A.D.3d 430, 431, 180 N.Y.S.3d 97 [1st Dept. 2022]).  JJ Industries proffered a conclusory affidavit from plaintiff's supervisor in which he stated, without elaboration, that he observed plaintiff ascend “the wrong side of the ladder,” so he told plaintiff to “go up the other side.”  However, “the recalcitrant worker defense is inapplicable in view of the undisputed fact that no adequate safety devices were provided” (see Zherka v. Hudson Meridian Constr. Group LLC, 206 A.D.3d 445, 446, 167 N.Y.S.3d 790 [1st Dept. 2022]).  Any alleged discrepancies in plaintiff's testimony are insufficient to create an issue of fact where it is undisputed that plaintiff lost his balance and fell from an unsecured ladder (see Orellano v. 29 E. 37th St. Realty Corp., 292 A.D.2d 289, 291, 740 N.Y.S.2d 16 [1st Dept. 2002]).