| Cevallos v Morning Dun Realty, Corp. |
| 2010 NY Slip Op 08461 [78 AD3d 547] |
| November 18, 2010 |
| Appellate Division, First Department |
| Lindemberg Cevallos, Appellant, v Morning Dun Realty, Corp.,Respondent. |
—[*1] Camacho Mauro & Mulholland, LLP, New York (Philip J. Odett of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or aboutOctober 2, 2009, which granted defendant's motion for summary judgment dismissing the complaintand denied plaintiff's cross motion for partial summary judgment on his Labor Law § 240 (1)cause of action, unanimously reversed, on the law, without costs, the motion denied and the crossmotion granted.
Defendant, the owner of a residential building, moved for summary judgment on the strength of thedeposition testimony of its principal, who stated that he was an absentee owner who retained amanaging agent to maintain the building, and of plaintiff. Plaintiff testified that he was employed as ahandyman by the managing agent, who instructed him to repair a hole in the ceiling of an apartment andsupplied all the materials and equipment for the repair job. The equipment included an old, wobblyladder lacking rubber material on its footing, which plaintiff had asked the managing agent to replace.Plaintiff testified that his injury occurred when the unsecured ladder collapsed and fell while he wasattempting, without assistance, to install sheetrock into the ceiling with a drill while holding it in placewith his head.
In light of plaintiff's undisputed testimony that defendant's managing agent failed to provide asuitable safety device and that the failure of the unsecured ladder proximately caused his injury, it waserror to grant summary judgment in favor of defendant dismissing the Labor Law § 240 (1)cause of action (see Vargas v New York CityTr. Auth., 60 AD3d 438, 440 [2009]). Moreover, defendant's argument that plaintiff'smethod of installing the sheetrock was negligent was insufficient, as a matter of law, to defeat plaintiff'scross motion for partial summary judgment. Any negligence on plaintiff's part could not have been thesole proximate cause of his accident, since the accident was caused, at least in part, by defendant'sfailure to satisfy its statutory duty to provide an adequate safety device to protect plaintiff from the riskof falling (see Gallagher v New YorkPost, 14 NY3d 83 [2010]; Hart vTurner Constr. Co., 30 AD3d 213 [2006]; Ben Gui Zhu v Great Riv. Holding,LLC, 16 AD3d 185 [2005]; Montalvo vJ. Petrocelli Constr., Inc., 8 AD3d 173, 175-176 [2004]). There was no evidence thatplaintiff either misused an adequate ladder or failed to use a readily available device that would haveprotected him from a fall (see Gallagher, 14 NY3d at 83; compare Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d280, 292 [2003]). Defendant's contention that, as an absentee owner, he did not [*2]supervise or control plaintiff's work is irrelevant, since absolute liabilityfollows upon proof that a defendant's breach of its statutory duty proximately caused the accident(see Zimmer v Chemung County Performing Arts, 65 NY2d 513 [1985]).
Nor do the arguments advanced by defendant establish its entitlement to summary judgmentdismissing the Labor Law § 241 (6) cause of action. In opposition to the motion, plaintiff allegedthe violation of a sufficiently specific Industrial Code provision (12 NYCRR 23-1.21 [b]) and raised anissue of fact whether the violation proximately caused his injury (see Hart, 30 AD3d at 214;De Oliveira v Little John's Moving, 289 AD2d 108 [2001]). Although plaintiff did notspecifically plead a violation of that Industrial Code provision in his bill of particulars, defendant doesnot claim any prejudice resulting from the late invocation thereof (see Latchuk v Port Auth. of N.Y. & N.J., 71 AD3d 560, 560-561[2010]).
The record also presents an issue of fact whether defendant had constructive notice that the ladderwas defective, which precludes summary judgment dismissing the Labor Law § 200 andcommon-law negligence causes of action (seeChowdhury v Rodriguez, 57 AD3d 121, 129-131 [2008]; Higgins v 1790 BroadwayAssoc., 261 AD2d 223 [1999]). The managing agent's affidavit, which defendant submitted inreply, could not be considered to remedy defects in defendant's motion papers (see Migdol v Cityof New York, 291 AD2d 201 [2002]). Even if it were considered, it would not entitle defendantto summary judgment but would raise issues of fact precluding summary judgment for either party.Concur—Mazzarelli, J.P., Saxe, McGuire, Freedman and Abdus-Salaam, JJ.