ROM v. EUROSTRUCT INC (2018)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 16, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment as to liability on the Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff established his entitlement to partial summary judgment on the Labor Law § 240(1) claim through his testimony that he was caused to fall to the ground when the unsecured ladder on which he was standing suddenly shifted and kicked out from underneath him (see Faver v. Midtown Trackage Ventures, LLC, 150 A.D.3d 580, 52 N.Y.S.3d 626 [1st Dept. 2017];  Kebe v. Greenpoint–Goldman Corp., 150 A.D.3d 453, 54 N.Y.S.3d 387 [1st Dept. 2017] ).

Defendants' opposition failed to raise a triable issue of fact.  None of coworkers who provided affidavits actually witnessed plaintiff fall from the ladder, and they did not contradict his testimony that the ladder suddenly moved.  Although defendants also submitted an unsworn accident report containing a statement from a coworker that plaintiff lost his balance and fell, this did not contradict plaintiff's consistent testimony that he fell because the ladder suddenly moved (see Hill v. City of New York, 140 A.D.3d 568, 570, 35 N.Y.S.3d 307 [1st Dept. 2016] ).  Furthermore, defendants' reliance on O'Brien v. Port Auth. of N.Y. & N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68, 74 N.E.3d 307 (2017) is misplaced because that case, which found an issue of fact about whether a slippery exterior staircase provided adequate protection to the plaintiff, left intact the presumption that Labor Law § 240(1) is violated where, as here, a ladder collapses or malfunctions for no apparent reason (see id. at 33, 52 N.Y.S.3d 68, 74 N.E.3d 307;  Kebe, 150 A.D.3d at 454, 54 N.Y.S.3d 387).