TORRES v. OUR TOWNHOUSE LLC (2012)

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 29, 2011, which denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff was injured when he fell to the ground while descending from a 12–foot–high sidewalk bridge without the use of a ladder or scaffold or any other safety device. Defendants contend that he was provided with a ladder and that his own decision to climb down a nearby tree instead of using the ladder was the sole proximate cause of his injuries. However, the record fails to support this contention. Even if defendants' evidence suggested that there might have been a ladder in the chassis under the truck at the work site, no evidence was presented that plaintiff knew where the ladder was or that he knew he was expected to use it and for no good reason chose not to do so (see Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010]; Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 11, 917 N.Y.S.2d 130 [2011] ).