| Rivera v 800 Alabama Ave., LLC |
| 2010 NY Slip Op 00943 [70 AD3d 798] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Andrew Rivera, Respondent, v 800 Alabama Ave., LLC,et al., Defendants, and Vasap Development Corp., Appellant. |
—[*1] Robert C. Fontanelli, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J.Isaac and Michael H. Zhu], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Vasap DevelopmentCorp. appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Kramer, J.), dated June 12, 2008, as granted that branch of the plaintiff's motion whichwas for summary judgment on the issue of liability on so much of the complaint as alleged aviolation of Labor Law § 240 (1) insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when an unsecured extension ladder slipped fromunderneath him as he was applying molding around the top edge of a freezer. As the ladderslipped, the plaintiff, who was on the fourth or fifth rung, climbed higher and grabbed a verticalmetal stud which ran from the top of the freezer to the ceiling. Although the plaintiff did not fall,his right hand was cut by the metal stud.
The plaintiff established his prima facie entitlement to judgment as a matter of law on theissue of liability on so much of the complaint as alleged a violation of Labor Law § 240(1) insofar as asserted against the defendant Vasap Development Corp. (hereinafter theappellant) (see Runner v New YorkStock Exch., Inc., 13 NY3d 599 [2009]; Razzak v NHS Community Dev. Corp., 63 AD3d 708, 709 [2009];Ricciardi v Bernard Janowitz Constr.Corp., 49 AD3d 624, 625 [2008]; Argueta v Pomona Panorama Estates, Ltd., 39 AD3d 785, 786[2007]; Guzman v Gumley-Haft, Inc., 274 AD2d 555, 556 [2000]).
In opposition, the appellant failed to raise a triable issue of fact as to whether the plaintiff'sconduct was the sole proximate cause of the accident (see Gordon v Eastern Ry. Supply,82 NY2d 555, 563 [1993]; Ricciardi v Bernard Janowitz Constr. Corp., 49 AD3d at 625;Chlap v 43rd St.-Second Ave.Corp., 18 AD3d 598 [2005]; compare Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d280 [2003]), or as to whether the failure to properly secure the ladder was not a substantialfactor leading to the [*2]plaintiff's injuries (see Klein v Cityof New York, 89 NY2d 833, 834-835 [1996]; Ricciardi v Bernard Janowitz Constr.Corp., 49 AD3d at 625; Guzman v Gumley-Haft, Inc., 274 AD2d at 556).Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which wasfor summary judgment on the issue of liability on so much of the complaint as alleged a violationof Labor Law § 240 (1) insofar as asserted against the appellant.
The appellant's remaining contention is without merit (see Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333, 337[2008]; Panek v County of Albany, 99 NY2d 452, 457-458 [2003]; Weininger vHagedorn & Co., 91 NY2d 958, 959-960 [1998]; Cuddon v Olympic Bd. of Mgrs.,300 AD2d 616, 617 [2002]). Dillon, J.P., Covello, Miller and Chambers, JJ., concur.