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

John J. WHALEN and Kelly Whalen, Plaintiffs-Respondents, v. EXXONMOBIL OIL CORPORATION and W.I.P.P. Enterprises, Inc., Defendants-Appellants.

Decided: April 25, 2008

PRESENT:  MARTOCHE, J.P., CENTRA, LUNN, PERADOTTO, AND GREEN, JJ. Cohen & Lombardo, P.C., Buffalo (Neil R. Sherwood of Counsel), for Defendants-Appellants. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs-Respondents.

 Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by John J. Whalen (plaintiff).   Plaintiff was injured when he leaned a six-foot A-frame ladder in the closed position against a door and stood on the first or second rung from the top.   As plaintiff reached one hand above his head, the door swung open, and the ladder fell forward, causing plaintiff to fall to the ground.   Supreme Court properly granted plaintiffs' cross motion seeking partial summary judgment on liability on the Labor Law § 240(1) claim.   Plaintiffs met their initial burden by submitting evidence establishing that “ defendant[s] violated Labor Law § 240(1) by failing to ensure the proper placement of the ladder” (Klein v. City of New York, 89 N.Y.2d 833, 835, 652 N.Y.S.2d 723, 675 N.E.2d 458;  see Losurdo v. Skyline Assoc., L.P., 24 A.D.3d 1235, 1236-1237, 807 N.Y.S.2d 249;   Alligood v. Hospitality W., LLC, 8 A.D.3d 1102, 778 N.Y.S.2d 360;  Morin v. Machnick Bldrs., 4 A.D.3d 668, 670, 772 N.Y.S.2d 388), and that such violation was a proximate cause of plaintiff's injuries (Rudnik v. Brogor Realty Corp., 45 A.D.3d 828, 829, 847 N.Y.S.2d 141).   Defendants failed to raise a triable issue of fact sufficient to defeat the cross motion.  “While the plaintiff may have been negligent in [leaning the ladder against the door], the plaintiff's conduct cannot be considered the sole proximate cause of his injuries” (Rudnik, 45 A.D.3d 828, 829, 847 N.Y.S.2d 141;  see also Alligood, 8 A.D.3d 1102, 778 N.Y.S.2d 360).   Further, the evidence submitted by defendants establishing “that the ladder was structurally sound and not defective ‘is not relevant on the issue of whether it was properly placed’ ” (Woods v. Design Ctr., LLC, 42 A.D.3d 876, 877, 839 N.Y.S.2d 880).   We reject the contention of defendants that the court erred in denying that part of their motion seeking summary judgment dismissing the Labor Law § 241(6) claim insofar as it is premised on the violation of 12 NYCRR 23-1.21.   Defendants failed to establish that 12 NYCRR 23-1.21(b)(9) is not applicable to the facts of this case, and they also failed to establish that they did not violate the regulation or that such violation was not a proximate cause of plaintiff's injuries (see Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 A.D.3d 1345, 1349, 770 N.Y.S.2d 504).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.


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