| Aponte v City of New York |
| 2008 NY Slip Op 08261 [55 AD3d 485] |
| October 30, 2008 |
| Appellate Division, First Department |
| Norberto Aponte, Respondent, v City of New York et al.,Appellant. |
—[*1] Bader Yakaitis & Nonnenmacher, LLP, New York (Robert E. Burke of counsel), forrespondent.
Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 7, 2007, whichgranted plaintiff's motion for partial summary judgment on the issue of liability on his cause ofaction under Labor Law § 240 (1) as against defendants City of New York and City ofNew York Department of Design and Construction, and denied such motion as against defendantO'Brien Kreitsberg, Inc. (OBK), unanimously affirmed, without costs.
Defendants' failure to provide adequate safety devices and to properly secure the ladder was acontributing cause of the accident. Plaintiff's conduct, at most, constituted comparativenegligence, which is not a defense under Labor Law § 240 (1) (see Montalvo v J.Petrocelli Constr., Inc., 8 AD3d 173 [2004]; Orellano v 29 E. 37th St. Realty Corp.,292 AD2d 289 [2002]).
Regarding the court's denial of plaintiff's motion for partial summary judgment as againstOBK, the "construction manager" for the project, plaintiff did not cross-appeal from this ruling(see CPLR 5515). In any event, given the existence of factual issues concerning the scopeof the construction manager's oversight and control of the work, the motion court's ruling wasappropriate (see e.g. Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]).
We have considered defendants' remaining contentions, including that the motion was [*2]premature in light of the need for further discovery, and find themunavailing. Plaintiff's request to strike material from the record on appeal is denied.Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ.