CIBOROWSKI v. 228 THOMPSON REALTY LLC (2020)

Order, Supreme Court, New York County (David B. Cohen, J.), entered February 7, 2020, which, to the extent appealed from, granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff established prima facie a violation of Labor Law § 240(1) and an injury proximately caused by that violation by testifying that the ladder on which he was standing to paint a wall wobbled and caused him to lose his balance and fall (Ocana v. Quasar Realty Partners L.P., 137 A.D.3d 566, 27 N.Y.S.3d 530 [1st Dept. 2016], lv dismissed 27 N.Y.3d 1078, 35 N.Y.S.3d 300, 54 N.E.3d 1172 [2016] ).  In opposition, defendant failed to raise an issue of fact as to whether plaintiff slipped or whether his own actions caused the ladder to move, as there is no evidentiary basis for these contentions (see Ortiz v. Burke Ave. Realty, Inc., 126 A.D.3d 577, 3 N.Y.S.3d 582 [1st Dept. 2015] ).  Moreover, the opinion by defendant's expert, who never examined the ladder, was unsupported and speculative (see Merino v. Continental Towers Condominium, 159 A.D.3d 471, 472–473, 72 N.Y.S.3d 59 [1st Dept. 2018] ).