PACHECO v. RECIO (2019)

DECISION & ORDER

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

On February 28, 2012, the plaintiff, an employee of nonparty Cristobel Ortez, was working as a construction laborer and was installing sheetrock at the residential premises owned by the defendant Marta Recio.  The plaintiff alleged that he fell as he stood on the third rung of a six-foot metal A-frame ladder while holding a small piece of sheetrock in one hand, and allegedly sustained injuries.  The plaintiff commenced this action against, among others, Recio, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), 241, and 242–a.  Thereafter, the plaintiff moved for summary judgment on the complaint, and Recio moved for summary judgment dismissing the complaint insofar as asserted against her.

We agree with the Supreme Court's determination to grant that branch of Recio's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against her.  Recio demonstrated her prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action by submitting, inter alia, the plaintiff's deposition testimony, which showed that the ladder from which the plaintiff fell was not defective or inadequate and that the ladder did not otherwise fail to provide protection.  The evidence showed that the plaintiff fell because he lost his balance (see Gaspar v. Pace Univ., 101 A.D.3d 1073, 957 N.Y.S.2d 393;  Chin Sue v. City of New York, 83 A.D.3d 643, 919 N.Y.S.2d 870).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

For the same reasons, we agree with the Supreme Court's denial of that branch of the plaintiff's motion which was for summary judgment on his Labor Law § 240(1) cause of action insofar as asserted against Recio.

BALKIN, J.P., CHAMBERS, COHEN and MILLER, JJ., concur.