PORTILLO v. DRMBRE 85 FEE LLC (2021)

Order, Supreme Court, New York County (Robert David Kalish, J.), entered January 6, 2020, which granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff established prima facie that defendants are liable for his injuries under Labor Law § 240(1).  Plaintiff was allegedly injured while removing overhead ceiling wires.  He conducted an unsuccessful search to find an available ladder in the apartment, and then he improvised by using a nearby 18–inch–high bucket in an upside-down position so as to stand atop it and reach overhead ceiling wires.  When the bucket suddenly tipped, he fell and was injured (see e.g. Ferguson v. Durst Pyramid, LLC, 178 A.D.3d 634, 117 N.Y.S.3d 12 [1st Dept. 2019]).

Defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his accident (see Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592 [2005]).  Plaintiff stated that he recalled that his supervisor would either use an A-frame ladder or climb atop a 5–gallon bucket for an overhead task.  Plaintiff also stated that he searched for a ladder for five minutes, and only found one, which his coworker was using at that moment.  As a result, plaintiff, like his supervisor, stood on an overturned bucket 18 inches high to reach the ceiling to perform his work, and fell when the bucket tipped.  There was no standing order not to use the bucket to complete the project, especially after he witnessed his supervisor doing so (cf.  Biaca–Neto v. Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1167, 121 N.Y.S.3d 753, 144 N.E.3d 363 [2020] [summary judgment was denied when the defendant submitted evidence that there was “a standing order that workers were not permitted to enter the building through the window cutouts” which was how the plaintiff was injured]).