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

John MADTES, Plaintiff-Respondent, v. BOVIS LEND LEASE LMB, INC., Defendant-Appellant.

Decided: September 25, 2008

TOM, J.P., MAZZARELLI, FRIEDMAN, WILLIAMS, MOSKOWITZ, JJ. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 5, 2008, which granted plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1), unanimously affirmed, without costs.

 Plaintiff, a foreman steamfitter, was injured when he fell from a 10-foot ladder while working on the renovation of the Cadman Plaza Post Office in Brooklyn.   In support of his motion for summary judgment, plaintiff presented evidence that he wanted to use a man lift to perform the pipe re-installation but was precluded from doing so because he could not use the elevators to transport the lift from the lower to the higher floors.   Plaintiff also presented evidence that he could not get his employer's 14-foot A-frame ladders to the eighth floor because they would not fit in the building stairwell.   In addition, plaintiff presented evidence that he was directed by defendant's project manager to get the job done that day and make do with what equipment was available.   With this evidence, plaintiff established his prima facie burden of entitlement to summary judgment.

 Defendant's evidence was insufficient to raise a triable issue of fact as to whether plaintiff was the sole cause of the accident so as to defeat summary judgment.   The affidavit of defendant's project manager was not adequate in this regard as it appears feigned to create an issue of fact in that it is inconsistent with his prior deposition testimony.