| Arnold v Baldwin Real Estate Corp. |
| 2009 NY Slip Op 04576 [63 AD3d 1621] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Tony Arnold, Respondent, v Baldwin Real Estate Corporation etal., Appellants. |
—[*1] Cellino & Barnes, P.C., Rochester (Sareer A. Fazili of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.),entered April 15, 2008 in a personal injury action. The order denied defendants' motion forsummary judgment and granted plaintiff's cross motion for partial summary judgment onliability.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law action seeking damages for injuries hesustained when he fell approximately 11 feet from a ladder to the ground while painting acommercial building. Supreme Court properly granted plaintiff's cross motion for partialsummary judgment on liability with respect to the Labor Law § 240 (1) claim. "Plaintiffmet his initial burden by submitting his uncontroverted deposition testimony in which hetestified that [the] ladder shifted, thus establishing as a matter of law that it was not so placed. . . as to give proper protection to plaintiff" (Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135,1136 [2008] [internal quotation marks omitted]; see Whalen v ExxonMobil Oil Corp., 50 AD3d 1553 [2008]), andhe further established that defendants' violation of Labor Law § 240 (1) was a proximatecause of his injuries (see Rudnik vBrogor Realty Corp., 45 AD3d 828, 829 [2007]). Thus, it cannot be said that plaintiffwas "solely to blame for [them]" (Blakev Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]; see Woods v Design Ctr., LLC, 42AD3d 876, 877 [2007]). Defendants failed to raise a triable issue of fact in opposition to thecross motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).The evidence submitted by defendants establishing "that the ladder was structurally sound andnot defective is not relevant on the issue of whether it was properly placed" (Whalen, 50AD3d at 1554 [internal quotation marks omitted]). Present—Scudder, P.J., Fahey,Peradotto, Carni and Green, JJ.