RODRIGUEZ v. BSREP UA HERITAGE LLC (2020)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered September 9, 2019, which, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, granted plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim, and upon a search of the record, granted plaintiff partial summary judgment on so much of the Labor Law § 241(6) claim as was based on alleged violations of Industrial Code (12 NYCRR) § 23–1.21, unanimously affirmed, without costs.

Plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1).  Plaintiff submitted his testimony, corroborated by a coworker who witnessed the accident, that plaintiff was working on a 10–foot ladder (a segment of a larger extension ladder) that suddenly slipped and tipped over, causing plaintiff to fall to the ground (see Rom v. Eurostruct, Inc., 158 A.D.3d 570, 71 N.Y.S.3d 57 [1st Dept. 2018];  Fanning v. Rockefeller Univ., 106 A.D.3d 484, 485, 964 N.Y.S.2d 525 [1st Dept. 2013]).  Plaintiff was not otherwise required to show that the ladder was defective (see Pierrakeas v. 137 E. 38th St. LLC, 177 A.D.3d 574, 574–575, 114 N.Y.S.3d 318 [1st Dept. 2019]).

In opposition, defendant failed to raise an issue of fact as to whether plaintiff's conduct was the sole proximate cause of his injuries.  Earlier on the day of the accident, plaintiff had seen other workers using the same ladder, which had been set up by another worker, and plaintiff's failure to secure the ladder was at most comparative negligence (see Concepcion v. 333 Seventh LLC, 162 A.D.3d 493, 494, 75 N.Y.S.3d 183 [1st Dept. 2018];  Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402, 403, 963 N.Y.S.2d 14 [1st Dept. 2013]).  “Plaintiff's failure to ask his coworkers to hold the ladder while he worked also did not constitute the sole proximate cause of the accident, since a coworker is not a safety device contemplated by the statute” (Noor v. City of New York, 130 A.D.3d 536, 541, 15 N.Y.S.3d 13 [1st Dept. 2015], lv dismissed 27 N.Y.3d 975, 31 N.Y.S.3d 451, 50 N.E.3d 919 [2016] [internal quotation marks omitted] ).  Furthermore, defendant's argument that plaintiff should have used a metal ladder available on the site, rather than the fiberglass ladder, is unsupported by the record (see Jarzabek v. Schafer Mews Hous. Dev. Fund Corp., 160 A.D.3d 412, 73 N.Y.S.3d 173 [1st Dept. 2018];  Fanning, 106 A.D.3d at 485, 964 N.Y.S.2d 525).

Since the court properly granted plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim, we need not reach the remaining issues raised on appeal (see Fanning, 106 A.D.3d at 485, 964 N.Y.S.2d 525).