| Miller v Spall Dev. Corp. |
| 2007 NY Slip Op 08516 [45 AD3d 1297] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Michael G. Miller, Respondent, v Spall Development Corporation,Appellant. |
—[*1] La Duca Law Firm, LLP, Rochester (Anthony J. La Duca of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.),entered August 17, 2006 in a Labor Law and common-law negligence action. The order, insofaras appealed from, granted that part of plaintiff's motion for partial summary judgment on liabilityunder Labor Law § 240 (1).
It is hereby ordered that the order insofar as appealed from be and the same hereby isunanimously reversed on the law without costs and the motion is denied in its entirety.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained when he fell from the top cap of a four-foot stepladder.We conclude that Supreme Court erred in granting that part of plaintiff's motion seeking partialsummary judgment on liability under Labor Law § 240 (1). In order to establish hisentitlement to judgment on liability as a matter of law, plaintiff was required to "show that thestatute was violated and that the violation proximately caused his injury" (Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 39 [2004]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,289 [2003]; Felker v Corning Inc., 90 NY2d 219, 224 [1997]), and we conclude thatplaintiff failed to meet his initial burden. Plaintiff has no recollection of the accident, and theonly other person present when he fell was a coworker who did not see him fall from the ladder.We thus conclude that plaintiff failed to establish in the first instance that any alleged inadequacyof the ladder was a proximate cause of plaintiff's fall. Notably, the only evidence of plaintiff'sactivity on the ladder immediately before he fell is that he was arguing with the coworker.Furthermore, plaintiff's expert admitted that he had examined the wrong ladder, and thus plaintifffailed to submit any competent expert evidence that the ladder was inadequate for the task inwhich plaintiff was engaged at the time he fell. Thus, it would be mere speculation to determinethat the ladder failed to afford plaintiff proper protection for the work he was undertaking. Wenote in addition that the coworker testified at his deposition that he did not see the ladder shift orkick out immediately before plaintiff fell, nor did he observe that the ladder shook or moved, andan emergency medical technician testified at her deposition that the ladder was upright when shearrived at the scene. Although in reply to defendant's opposing papers plaintiff submitted anaffidavit of the coworker stating that the ladder had fallen, we do not consider plaintiff's reply[*2]papers in determining whether plaintiff met his initial burden(see Wonderling v CSX Transp.,Inc., 34 AD3d 1244, 1245 [2006]).
Even, assuming, arguendo, that plaintiff met his initial burden with respect to Labor Law§ 240 (1) liability, we conclude that defendant raised triable issues of fact to defeat thatpart of plaintiff's motion, i.e., "there is a plausible view of the evidence—enough to raise afact question—that there was no statutory violation and that plaintiff's own acts oromissions were the sole cause of the accident" (Blake, 1 NY3d at 289 n 8). In particular,defendant raised issues of fact whether the ladder provided proper protection, whether plaintiff'smisuse of the ladder was the sole proximate cause of plaintiff's injuries and whether thecoworker's having pushed plaintiff off the ladder was a proximate cause of his injuries. Contraryto the court's determination, defendant in fact submitted competent expert evidence sufficient toraise an issue of fact whether the ladder was adequate for plaintiff's work. Although the coworkertestified at his deposition to the effect that he and plaintiff should have been using eight-footstepladders because they could not perform their work without stepping on the top of thefour-foot stepladder, that deposition testimony merely raises an issue of fact with respect to theadequacy of the ladder in view of the affidavit of defendant's expert to the contrary. Moreover,unnecessarily standing on the top cap of a stepladder constitutes a misuse of the ladder, anddefendant raised an issue of fact by its expert affidavit whether it was necessary for plaintiff to doso and, if not, whether plaintiff's own actions were the sole proximate cause of plaintiff's injuries(see Robinson v East Med. Ctr., LP,6 NY3d 550, 554-555 [2006]; Letterese v State of New York, 33 AD3d 593 [2006]; cf. Izzo vAEW Capital Mgt., 288 AD2d 268 [2001]). Lastly, in light of the numerous contradictoryadmissions of plaintiff on the issue whether his coworker pushed him off the ladder, we furtherconclude that there is a triable issue of fact whether there was a statutory violation or whether thecoworker's actions were the sole proximate cause of the accident (see Martucci v TirroConstr. Corp., 192 Misc 2d 22, 29 [2002]; see generally Blake, 1 NY3d at 289 n 8).
In light of our determination, we need not reach defendant's remaining contentions, but weconclude in any event that they are without merit. Present—Scudder, P.J., Gorski, Centra,Lunn and Peradotto, JJ.