MALTESE v. [And Other Third–Party Actions] (2021)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about May 18, 2020, which, insofar as appealed from as limited by the briefs, granted plaintiffs’ motion for summary judgment as to liability on the Labor Law § 240(1) claim as against defendant Port of Authority of New York and New Jersey, unanimously affirmed, without costs.

Plaintiff Antonio Maltese (plaintiff) established prima facie that his injuries were proximately caused by a violation of Labor Law § 240(1) by testifying that he fell when an unsecured extension ladder slid and collapsed under him (see Panek v. County of Albany, 99 N.Y.2d 452, 458, 758 N.Y.S.2d 267, 788 N.E.2d 616 [2003];  Rodriguez v. BSREP UA Heritage LLC, 181 A.D.3d 537, 538, 122 N.Y.S.3d 10 [1st Dept. 2020]).

In opposition, defendant Port Authority failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his accident.  Port Authority contends that scaffolds and manlifts were readily available on site and that plaintiff was recalcitrant in failing to use them.  It points to testimony by an inspector for third-party defendant Techno Consult, Inc. and an affidavit by the millwright general foreman for the general contractor, second third-party defendant Yonkers Contracting Company, Inc. (plaintiff's employer).  However, viewed in the light most favorable to Port Authority, this evidence fails to raise an issue of fact as to sole proximate causation.  While the testimony and affidavit do suggest the availability of scaffolds and lifts, neither indicates that plaintiff “knew he was expected to use them but for no good reason chose not to do so” (Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010]).  The scaffold that the inspector saw was being used by the welders, not Yonkers's carpenters, and Port Authority's chief safety supervisor testified that the contractors provided their own equipment.  Although the millwright general foreman's affidavit stated that scaffolds and lifts were readily available and accessible to Yonkers employees, there is no evidence that plaintiff had been instructed to use, or knew he was expected to use, them (id. at 88–89, 896 N.Y.S.2d 732, 923 N.E.2d 1120).  Port Authority's contention that plaintiff, an experienced carpenter, should have been aware that he should be using scaffolding or a manlift also fails to raise an issue of fact, since Port Authority offered no evidence that using a scaffold or manlift would have been plaintiff's “ ‘normal and logical response’ ” (Noor v. City of New York, 130 A.D.3d 536, 540, 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]).

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