PENA v. JANE GOLDMAN RESIDUARY TRUST NUMBER (2018)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 9, 2016, which, inter alia, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action as against defendant Sol Goldman Investments, LLC (SGI), unanimously affirmed, without costs.

Plaintiff established entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) cause of action as against SGI. Plaintiff submitted his deposition testimony, which showed that he was injured when the unsecured and damaged ladder upon which he was working wobbled, causing him to fall (see Goreczny v. 16 Ct. St. Owner LLC, 110 A.D.3d 465, 973 N.Y.S.2d 54 [1st Dept. 2013] ).

SGI's opposition failed to raise a triable issue of fact.  Its submission of an ambiguous affidavit from plaintiff's supervisor was insufficient to rebut plaintiff's prima facie showing.  Notably, the supervisor did not address the fact that he was at the scene of the accident shortly after plaintiff fell, and provided only vague references to other available ladders, without addressing plaintiff's testimony that other workers were using those ladders (see Gallagher v. New York Post, 14 N.Y.3d 83, 88–89, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010];  see also Rivera v. Dafna Constr. Co., Ltd., 27 A.D.3d 545, 545–546, 813 N.Y.S.2d 109 [2d Dept. 2006] ).  Furthermore, SGI's argument that questions of fact exist as to whether plaintiff was the sole proximate cause of his accident is unavailing given that SGI failed to make a showing that adequate safety devices were provided to plaintiff (see Rice v. West 37th Group, LLC, 78 A.D.3d 492, 913 N.Y.S.2d 13 [1st Dept. 2010] ).

We have considered SGI's remaining contentions and find them unavailing.