MAYANCELA v. ALMAT REALTY DEVELOPMENT LLC (2003)

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 2, 2002, which, to the extent appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim, and denied plaintiff's cross motion for summary judgment as to liability upon the same claim, unanimously affirmed, without costs.

In view of plaintiff's admission in his deposition testimony that for no particular reason he misused the A-frame ladder from which he fell despite specific, repeated and recent instructions from his employer respecting the ladder's proper and improper use, defendant's motion, based on the recalcitrant worker defense, for summary judgment dismissing plaintiff's Labor Law § 240(1) claim, was properly granted (cf.  Jamil v. Concourse Enters., 293 A.D.2d 271, 273, 740 N.Y.S.2d 308).   Plaintiff's attempt to create a triable issue through the submission of a self-serving, post-deposition affidavit contradicting his prior testimony was properly rejected by the motion court (see Perez v. Bronx Park S. Assocs., 285 A.D.2d 402, 404, 728 N.Y.S.2d 33, lv. denied 97 N.Y.2d 610, 740 N.Y.S.2d 694, 767 N.E.2d 151).