NOLAN v. Silverstein Properties, Inc., Defendant. (2018)

Judgment, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 26, 2017, in favor of plaintiff on the issue of liability under Labor Law § 240(1), pursuant to an order, same court and Justice, entered May 22, 2017, which granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.  Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff made a prima facie showing of entitlement to partial summary judgment on the issue of liability on his Labor Law § 240(1) claim with his testimony that the makeshift ladder on which he was descending after detaching a crane cable from the top of an eight-foot C–box slid out from under him (see Panek v. County of Albany, 99 N.Y.2d 452, 458, 758 N.Y.S.2d 267, 788 N.E.2d 616 [2003];  Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524, 526, 988 N.Y.S.2d 58 [1st Dept. 2014] ).

In opposition, defendants failed to raise a triable issue of fact.  The affidavit of plaintiff's coworker, who stated that “[he] observed [plaintiff] fall from the ladder after he appeared to have ‘missed’ the last step,” does not raise a triable issue as to whether plaintiff was the sole proximate cause of the accident, as it does not refute plaintiff's assertion that the ladder slid out from beneath him (see Garcia v. Church of St. Joseph of the Holy Family of the City of N.Y., 146 A.D.3d 524, 525–526, 45 N.Y.S.3d 66 [1st Dept. 2017] ).

We have considered defendants' remaining contentions and find them unavailing.