| Dowling v McCloskey Community Servs. Corp. |
| 2007 NY Slip Op 09478 [45 AD3d 1232] |
| November 29, 2007 |
| Appellate Division, Third Department |
| Michael Dowling et al., Appellants, v McCloskey CommunityServices Corporation, Respondent. |
—[*1] Phelan, Phelan & Danel, L.L.P., Albany (Noelle M. Long of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Doyle, J.), entered December 15,2006 in Albany County, which denied plaintiffs' motion for partial summary judgment on theissue of liability pursuant to Labor Law § 240 (1).
Plaintiff Michael Dowling (hereinafter plaintiff) was injured when he fell from an extensionladder while painting the ceiling of a chapel located on property owned by defendant. Plaintiffwas provided with a 20-foot straight aluminum extension ladder, which he leaned against aceiling beam approximately 16 feet above the floor. According to plaintiff, while he was on theladder painting the ceiling, he heard "a creaking sound and the ladder slipped" out fromunderneath him, causing him to fall. As a result, plaintiff and his wife, derivatively, commencedthis personal injury action alleging, among other things, a violation of Labor Law § 240(1). Following joinder of issue and discovery, plaintiffs moved for partial summary judgment onthe issue of liability alleging that plaintiff was not provided with an adequately-secured andproperly-placed ladder as required by Labor Law § 240 (1). Supreme Court denied thatmotion and this appeal ensued.
Pursuant to Labor Law § 240 (1), owners and contractors are required to construct,place and operate elevation-related safety devices to provide workers with proper protection fromrisks [*2]inherent in elevation-related work sites (see Ball v Cascade Tissue Group-N.Y.,Inc., 36 AD3d 1187, 1188 [2007]). Whether the provided safety device afforded properprotection to a worker within the meaning of Labor Law § 240 is ordinarily a question offact (see Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 854 [1995]). However, "'where the device collapses, slips or otherwise fails to perform its function of supporting theworker[ ]' " a prima facie entitlement to partial summary judgment is established (Squires vMarini Bldrs., 293 AD2d 808, 809 [2002], lv denied 99 NY2d 502 [2002], quotingBeesimer v Albany Ave./Rte. 9 Realty, 216 AD2d at 854; see Morin v Machnick Bldrs., 4 AD3d668, 670 [2004]). Here, plaintiff's deposition testimony that the unsecured aluminumextension ladder slipped out from underneath him while he was painting established plaintiffs'prima facie entitlement to partial summary judgment on liability under Labor Law § 240(1), thereby shifting the burden to defendant to demonstrate the existence of a triable issue of fact(see Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d at 1188; Morin v MachnickBldrs., 4 AD3d at 670). Importantly, defendant did not refute plaintiff's testimony or submitany evidence that the ladder was adequate and properly placed or that plaintiff's conduct was thesole proximate cause of the injuries.[FN*]Accordingly, plaintiffs' motion should have been granted (see Panek v County of Albany,99 NY2d 452, 458 [2003]; Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d at 1188;Morin v Machnick Bldrs., 4 AD3d at 670-671).
Crew III, Peters, Spain and Carpinello, JJ., concur. Ordered that the order is reversed, on thelaw, with costs, and motion granted.
Footnote *: Although defendant's evidencein opposition to summary judgment raises a question of fact regarding a violation of 12 NYCRR23-1.21, this is insufficient to raise a question of fact with respect to the violation of Labor Law§ 240 (1).