ESCUDERO v. [And a Third-Party Action]. (2026)

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered July 31, 2024, which denied plaintiff Danilo Veliz Escudero's motion for summary judgment on liability on his Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim.  Plaintiff provided unrebutted testimony that while he was tightening a coupling on a pipe in the ceiling, the A-frame ladder he was standing on moved, causing him to fall and the ladder to tip over (see Morales v. 2400 Ryer Ave. Realty, LLC, 190 A.D.3d 647, 647, 136 N.Y.S.3d 881 [1st Dept. 2021] ).

However, in opposition, defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident.  Plaintiff's unrebutted testimony was that he had to use the ladder to reach the ceiling, and that the ceiling was “a little more” than six-feet high.  Defendants' expert's opinion that plaintiff did not need a ladder was based on an incomplete reading of plaintiff's testimony, and did not otherwise identify first-hand knowledge or other evidence about the actual height of the ceiling, and was thus, speculative (see Min Zhong v. Matranga, 208 A.D.3d 439, 443, 173 N.Y.S.3d 238 [1st Dept. 2022], affd 39 N.Y.3d 1053, 183 N.Y.S.3d 49, 203 N.E.3d 624 [2023] ).  Even if plaintiff's testimony contained inconsistencies concerning the height of the ceiling, such inconsistencies were insufficient to raise a triable issue of fact as to how the accident occurred (cf.  Simpertegui v. Carlyle House Inc., 227 A.D.3d 486, 486, 209 N.Y.S.3d 42 [1st Dept. 2024] ).