DURAN v. ERY RETAIL PODIUM LLC (2025)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered May 20, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240(1) claim and denied defendants’ motion for summary judgment dismissing that claim, unanimously affirmed, without costs.

Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim by submitting his deposition testimony that he fell from an unsecured 12–foot A-frame ladder that suddenly wobbled as he was descending it, causing him to miss a step and fall (see Rodas–Garcia v. NYC United LLC, 225 A.D.3d 556, 556, 207 N.Y.S.3d 473 [1st Dept. 2024]).  In opposition, defendants failed to raise an issue of fact.  Assuming plaintiff's out-of-court statements may be considered, they are not inconsistent with plaintiff's deposition testimony and statement in his worker's compensation C–3 form that he missed a step because the ladder wobbled (see id. at 556–557, 207 N.Y.S.3d 473;  Hill v. City of New York, 140 A.D.3d 568, 570, 35 N.Y.S.3d 307 [1st Dept. 2016];  see also Sanchez v. MC 19 E. Houston LLC, 216 A.D.3d 443, 443–444, 187 N.Y.S.3d 632 [1st Dept. 2023]).

In contrast, in cases relied on by defendants, conflicting accounts as to how the plaintiff fell from a ladder raised genuine factual disputes over causation, that is, whether the accident resulted from a defect in safety devices or plaintiff's own conduct (cf.  DiCembrino v. Verizon N.Y. Inc., 149 A.D.3d 541, 541, 52 N.Y.S.3d 350 [1st Dept. 2017];  Hamill v. Mutual of Am. Inv. Corp., 79 A.D.3d 478, 479, 913 N.Y.S.2d 62 [1st Dept. 2010]).

Defendants failed to show that plaintiff was a recalcitrant worker (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]).  Because plaintiff's accident resulted from a violation of Labor Law § 240(1), his “own negligence does not furnish a defense” (Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 [2015]).  At most, plaintiff's failure to maintain points of contact with the ladder is comparative negligence, which is not a defense to absolute liability under the statute (Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 289, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003]).