| McCaffery v Wright & Co. Constr., Inc. |
| 2010 NY Slip Op 02107 [71 AD3d 842] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Richard McCaffery, Respondent, v Wright & Co.Construction, Inc., Appellant, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Werner, Zaroff, Slotnick, Stern & Ashkenazy, LLP, Lynbrook, N.Y. (Howard J. Stern ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant Wright & Co.Construction, Inc., appeals from an order of the Supreme Court, Suffolk County (Baisley, J.),dated December 18, 2008, which granted the plaintiff's motion for summary judgment on theissue of liability on so much of the complaint as alleged a violation of Labor Law § 240(1) insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff, a carpenter and employee of the third-party defendant, Garrett ConstructionCorp., was working in the basement of a house that had been raised above the ground to permitits renovation. He allegedly was injured when an unsecured ladder kicked out from underneathhim as he was in the process of putting blocks in the overhead floor joists, and he fell to thefloor.
The plaintiff established, prima facie, his 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 general contractor, the defendant Wright & Co. Construction,Inc. (hereinafter Wright), by submitting his affidavit and deposition testimony, whichdemonstrated that he fell from an unsecured ladder, and that the failure to secure the ladderproximately caused his injuries (see Klein v City of New York, 89 NY2d 833, 835[1996]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 561-562 [1993]; Rivera v 800 Ala. Ave., LLC, 70AD3d 798 [2010]; Yin Min Zhu vTriple L. Group, LLC, 64 AD3d 590 [2009]; Gilhooly v Dormitory Auth. of State of N.Y., 51 AD3d 719[2008]; Salon v Millinery Syndicate,Inc., 47 AD3d 914 [2008]; Boev Gammarati, 26 AD3d 351 [2006]).
In opposition, Wright failed to raise a triable issue of fact as to whether the plaintiff'sconduct was the sole proximate cause of the accident (see Gilhooly v Dormitory Auth. of State of N.Y., 51 AD3d 719[2008]; McCarthy v Turner Constr.,Inc., 52 AD3d 333 [2008]). The fact that the plaintiff may have been the sole witness tothe accident does not preclude the award of summary judgment in his favor (see Klein v Cityof New York, 89 NY2d 833 [1996]; Yin Min Zhu v Triple L. Group, LLC, 64 AD3d 590 [2009]; Rivera v Dafna Constr. Co., Ltd., 27AD3d 545 [2006]; Perrone vTishman Speyer Props., L.P., 13 AD3d 146 [2004]). Moreover, Wright "did not offerany evidence, other than mere speculation, that undermined the prima facie case or presented abona fide issue regarding the plaintiff's credibility as to a material fact" (Rivera v DafnaConstr. Co., Ltd., 27 AD3d at 545-546). Accordingly, the Supreme Court properly grantedthe plaintiff's motion for summary judgment on the issue of liability on so much of the complaintas alleged on violation of Labor Law § 240 (1) insofar as asserted against Wright. Rivera,J.P., Florio, Miller and Eng, JJ., concur.