CARLOS v. 19 LLC

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Supreme Court, Appellate Division, First Department, New York.

Mowbray CARLOS, et al., Plaintiffs-Appellants, v. W.H.P. 19 LLC, et al., Defendants-Respondents.

Decided: February 22, 2001

NARDELLI, J.P., WILLIAMS, ANDRIAS, WALLACH and LERNER, JJ. Paul F. McAloon, attorney for the Plaintiffs-Appellants. Harry Steinberg, attorney for the Defendants-Respondents.

Order, Supreme Court, Bronx County (Howard Silver, J.), entered May 30, 2000, which denied plaintiffs' motion for partial summary judgment as to liability upon their Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and plaintiffs' motion granted.

 Plaintiffs' motion for partial summary judgment on their Labor Law § 240(1) claim should have been granted inasmuch as comparative negligence is not a defense to such claim (Bland v. Manocherian, 66 N.Y.2d 452, 460-461, 497 N.Y.S.2d 880, 488 N.E.2d 810).   The improper placement of the ladder on an uneven sidewalk and the failure to secure it were violations of Labor Law § 240(1) and, therefore, plaintiff laborer's conduct in continuing to ascend a ladder he knew had been only partially opened was not, as a matter of law, the sole proximate cause of his accident (cf., Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.S.2d 840, 695 N.E.2d 709).

 We also reject defendant's argument that there is a factual issue as to whether plaintiff was engaged in work falling within the protective ambit of Labor Law § 240(1).   The argument is not properly before us, having been advanced for the first time on appeal, and, in any event, is without merit.   Plaintiff's removal of a sign was an integral part of a larger ongoing project to construct a high-rise apartment building and, as such, was covered under Labor Law § 240(1) (see, Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117).