EKERE v. AIRMONT INDUSTRIAL PARK (1998)

Order, Supreme Court, Bronx County (Alan Saks, J.), entered December 2, 1996, which granted plaintiffs' motion for partial summary judgment against defendants other than the Holiday Inns franchising defendants on the issue of liability under Labor Law § 240(1) and denied third-party defendant Briker Corp.'s cross motion for summary judgment dismissing the complaints of plaintiffs and third-party plaintiffs, unanimously affirmed, without costs.

Plaintiff Thomas Ekere, who was injured when he fell from a ladder while cleaning an awning with a pressure cleaning machine and a brush, was entitled to the protection of Labor Law § 240(1) (Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Bustamante v. Chase Manhattan Bank, N.A., 241 A.D.2d 327, 659 N.Y.S.2d 284;  Buendia v. New York National Bank, 223 A.D.2d 456, 637 N.Y.S.2d 70, appeal dismissed 88 N.Y.2d 962, 647 N.Y.S.2d 715, 670 N.E.2d 1347).   Although the ladder did not break or fall during the incident, it is undisputed that no block, wood or rubber guards were placed under the ladder, which was positioned on uneven gravel and grass by plaintiff and his employer, the third-party defendant.   No scaffolding was erected, nor was plaintiff provided with other safety devices.   Although plaintiff's employer held the ladder while plaintiff climbed up, he thereafter departed, leaving plaintiff unprotected while he performed his duties.   Such circumstances constituted a violation of Labor Law § 240(1), as to which absolute liability was properly found (Gordon v. Eastern Ry. Supply, Inc., supra;  Guillory v. Nautilus Real Estate, 208 A.D.2d 336, 624 N.Y.S.2d 110, appeal dismissed 86 N.Y.2d 881, 635 N.Y.S.2d 943, 659 N.E.2d 766;  and see, Urrea v. Sedgwick Ave. Assocs., 191 A.D.2d 319, 595 N.Y.S.2d 46).   Although defendants and third-party defendant contend that issues of fact exist with respect to the manner in which the accident occurred and as to whether any purported violations of the Labor Law were the proximate cause of plaintiff's injury, since the violations of the statute were a “substantial cause of the events which produced the injury” (Gordon v. Eastern Ry. Supply, Inc., supra, at 562, 606 N.Y.S.2d 127, 626 N.E.2d 912, citing Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666) and a worker's contributory negligence does not mitigate liability for violation of Labor Law § 240 (Bland v. Manocherian, 66 N.Y.2d 452, 460, 497 N.Y.S.2d 880, 488 N.E.2d 810;  Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898;  La Lima v. Epstein, 143 A.D.2d 886, 888, 533 N.Y.S.2d 399), Supreme Court's grant of plaintiffs' motion for partial summary judgment was proper.

MEMORANDUM DECISION.