| Leconte v 80 E. End Owners Corp. |
| 2011 NY Slip Op 00359 [80 AD3d 669] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Fritz Leconte, Appellant, v 80 East End Owners Corp. etal., Respondents. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Queens County (McDonald, J.), entered May 10, 2010, as deniedhis motion for summary judgment on the issue of liability on the third cause of action alleging aviolation of Labor Law § 240 (1).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theplaintiff's motion for summary judgment on the issue of liability on the third cause of actionalleging a violation of Labor Law § 240 (1) is granted.
The plaintiff alleges that he was injured in the course of his employment as an installer ofsecurity systems while tying cable wire to conduit piping in the boiler room of a building inManhattan. He claims that he was given an eight-foot A-frame ladder by one of the building'semployees and tried to place it in an opened position onto a stairway landing in order to reach thepiping. After finding that he was unable to fit it onto the landing in an opened position, he leanedthe closed ladder against a wall from atop the landing. While working on the ladder, he felt it tiltto the left as a part of it went through one of the gaps between the metal slats of the landing. Theplaintiff fell with the ladder, allegedly sustaining injuries.
The plaintiff commenced this action against 80 East End Owners Corp. and Douglas EllimanProperty Management, the owner and managing agent of the building, respectively (hereinaftertogether the defendants). The defendants' job superintendent testified, at his deposition, that theplaintiff was not offered use of the building's ladders, which were stored in the boiler room nearthe plaintiff's work area, and that he had seen the plaintiff standing on a railing in the boiler roomshortly before the accident.
The plaintiff moved for summary judgment on the issue of liability on the third cause ofaction alleging a violation of Labor Law § 240 (1). The Supreme Court, inter alia, deniedthe plaintiff's motion. We reverse the order insofar as appealed from.
"In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establishthat the statute was violated and that the violation was a proximate cause of his or her injuries"(Rudnik v Brogor Realty Corp., 45AD3d 828, 829 [2007]; see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). The defendantsargue that the plaintiff failed to establish his entitlement to judgment as a matter of law in light ofthe conflicting accounts of the plaintiff and the defendants' witnesses with regard to the mannerin which the accident occurred. While the plaintiff stated that he used a ladder and fell when apart of it went through the metal slats of the stairway landing, the defendants' witnesses testifiedduring their examinations before trial that the plaintiff had not been offered the use of a ladder,that ladders were stored, unchained, near his work area, and that he was seen standing on therailing of the stairway landing shortly before the accident.
Although a motion for summary judgment "should not be granted where the facts are indispute" (Ampolini v Long Is. Light. Co., 186 AD2d 772, 773 [1992]), the dispute "mustrelate to material issues" (Forrestv Jewish Guild for the Blind, 3 NY3d 295, 312 [2004]; see Rizk v Cohen, 73NY2d 98, 105 [1989]). The dispute here does not relate to a material issue, as the plaintiff wouldbe entitled to summary judgment under either set of facts (see Forrest v Jewish Guild for theBlind, 3 NY3d at 312).
Whether the plaintiff here used a ladder and fell when a part of it went through the gaps ofthe stairway landing, or did not use one of the building's ladders and fell from the stairway'srailing, he established his prima facie entitlement to judgment as a matter of law by showing thathe was not provided with a proper safety device with which he could perform his job, and thatthe defendants' failure to provide such protection was a proximate cause of his injuries (see Riffo-Velozo v Village ofScarsdale, 68 AD3d 839, 840-841 [2009]; Rudnik v Brogor Realty Corp., 45AD3d at 829; see also Gallagher v NewYork Post, 14 NY3d 83, 88 [2010]; Klein v City of New York, 89 NY2d 833,834 [1996]).
In opposition, the defendants failed to raise a triable issue of fact under either set of facts.Under the defendants' version of the facts, the plaintiff's alleged conduct in climbing on therailing cannot be considered the sole proximate cause of the accident since the defendants' proofshowed that he was not offered the use of the building's ladders. The defendants' account alsofailed to raise an issue of fact as to whether the plaintiff knew he was allowed to use thebuilding's ladders but chose not to do so, so as to create a triable factual issue as to whether ornot the alleged conduct of the plaintiff in climbing on the railing instead of using a ladder couldbe considered the sole proximate cause of the accident (see Gallagher v New York Post,14 NY3d at 88; cf. Robinson v EastMed. Ctr., LP, 6 NY3d 550, 554-555 [2006]; Herrnsdorf v Bernard Janowitz Constr. Corp., 67 AD3d 640,642-643 [2009]). While the defendants' expert's affidavit suggests, with regard to the plaintiff'saccount of the facts, that the plaintiff may have been negligent in placing the closed A-frameladder against the wall from atop the stairway landing in a manner that allowed a part of it to gothrough one of the gaps between the metal slats, "the plaintiff's conduct cannot be considered thesole proximate cause of his injuries" (Rudnik v Broger Realty Corp., 45 AD3d at 829;Riffo-Velozo v Village of Scarsdale, 68 AD3d at 841; see Rico-Castro v Do & Co N.Y. Catering,Inc., 60 AD3d 749, 750 [2009]). Florio, J.P., Eng, Belen and Austin, JJ., concur.[Prior Case History: 27 Misc 3d 1217(A), 2010 NY Slip Op 50784(U).]