MELENDEZ v. 1595 BROADWAY LLC (2023)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about May 9, 2022, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim as to defendants 1595 Broadway LLC and Triple C Builders LLC, unanimously reversed, on the law, without costs, and the motion granted.

The court should have granted plaintiff partial summary judgment on his Labor Law § 240(1) claim as to property owner 1595 Broadway and general contractor Triple C Builders.  Plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1) by submitting his testimony that the unsecured extension ladder that he was using to descend from a sidewalk bridge slid and collapsed under him (see Maltese v. Port of Auth. of N.Y. & N.J., 199 A.D.3d 612, 613, 157 N.Y.S.3d 436 [1st Dept. 2021];  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 testified that there were seven witnesses to the accident.  Even if plaintiff had been the sole witness to the accident, summary judgment is not precluded, since nothing in the record refuted his account of the accident or called into question his credibility (see Valdez v. City of New York, 189 A.D.3d 425, 132 N.Y.S.3d 777 [1st Dept. 2020];  Sacko v. New York City Hous. Auth., 188 A.D.3d 546, 547, 132 N.Y.S.3d 611 [1st Dept.2020]).

In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries.  Because the ladder was set up for use by another worker, any failure by plaintiff to check its locking mechanism or to ascertain that it was tied off amounts to comparative negligence, a defense inapplicable to a Labor Law § 240(1) claim (see Daly v. Metropolitan Transp. Auth., 206 A.D.3d 467, 468, 168 N.Y.S.3d 308 [1st Dept. 2022];  Sacko, 188 A.D.3d at 547, 132 N.Y.S.3d 611;  cf.  Bonczar v. American Multi–Cinema, Inc., 38 N.Y.3d 1023, 168 N.Y.S.3d 711, 188 N.E.3d 1000 [2022]).  The fact that plaintiff unhooked his harness before descending the ladder is insufficient to raise an issue of fact, in the absence of evidence that anchorage points were available for his use on his descent (see Garcia v. Church of St. Joseph of the Holy Family of the City of N.Y., 146 A.D.3d 524, 526, 45 N.Y.S.3d 66 [1st Dept. 2017]).  “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” (Rodriguez v. BSREP UA Heritage LLC, 181 A.D.3d 537, 538, 122 N.Y.S.3d 10 [1st Dept. 2020] [internal quotation marks omitted]).