| Whalen v ExxonMobil Oil Corp. |
| 2008 NY Slip Op 03824 [50 AD3d 1553] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| John J. Whalen et al., Respondents, v ExxonMobil Oil Corporationet al., Appellants. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredSeptember 11, 2007 in a personal injury action. The order, insofar as appealed from, denied inpart defendants' motion for summary judgment dismissing the complaint and granted plaintiffs'cross motion for partial summary judgment on liability on the Labor Law § 240 (1) claim.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries sustained by John J. Whalen (plaintiff). Plaintiff was injured whenhe leaned a six-foot A-frame ladder in the closed position against a door and stood on the first orsecond 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 properlygranted 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 ofthe ladder" (Klein v City of New York, 89 NY2d 833, 835 [1996]; see Losurdo v Skyline Assoc., L.P., 24AD3d 1235, 1236-1237 [2005]; Alligood v Hospitality W., LLC, 8 AD3d 1102 [2004]; Morin v Machnick Bldrs., 4 AD3d668, 670 [2004]), and that such violation was a proximate cause of plaintiff's injuries (Rudnik v Brogor Realty Corp., 45AD3d 828, 829 [2007]). Defendants failed to raise a triable issue of fact sufficient to defeatthe cross motion. "While the plaintiff may have been negligent in [leaning the ladder against thedoor], the plaintiff's conduct cannot be considered the sole proximate cause of his injuries"(Rudnik, 45 AD3d 828, 829 [2007]; see also Alligood, 8 AD3d 1102 [2004]).Further, the evidence submitted by defendants establishing "that the ladder was structurallysound and not defective 'is not relevant on the issue of whether it was properly placed' " (Woods v Design Ctr., LLC, 42 AD3d876, 877 [2007]). We reject the contention of defendants that the court erred in denying thatpart of their motion seeking summary judgment dismissing the Labor Law § 241 (6) claiminsofar as it is premised on the violation of 12 NYCRR 23-1.21. Defendants failed to establishthat 12 NYCRR 23-1.21 (b) (9) is not applicable to the facts of this case, and they also failed toestablish that they did not violate the regulation or that such violation was not a [*2]proximate cause of plaintiff's injuries (see Piazza v Frank L. Ciminelli Constr.Co., Inc., 2 AD3d 1345, 1349 [2003]). Present—Martoche, J.P., Centra, Lunn,Peradotto and Green, JJ.