| Ordonez v C.G. Plumbing Supply Corp. |
| 2011 NY Slip Op 03563 [83 AD3d 1021] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Jorge Ordonez, Appellant, v C.G. Plumbing Supply Corp.et al., Respondents. (And a Third-Party Action.) |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (McDonald, J.), datedOctober 19, 2009, as denied his motion for summary judgment on the issue of liability on hisLabor Law § 240 (1) cause of action.
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 his Labor Law § 240(1) cause of action is granted.
The plaintiff allegedly was injured when an unsecured extension ladder slipped fromunderneath him as he attempted to descend it after completing a welding task. To complete thetask the plaintiff was hoisted to the roof of an adjoining building by a forklift. A coworker thenplaced the ladder against the wall of the building, and the plaintiff stood on the ladder whileperforming the welding task. After the plaintiff finished, as he took his first step down the ladder,the ladder slipped out away from the wall and fell to the ground, causing the plaintiff to fall andsustain injuries. The plaintiff was employed by the third-party defendant, Santos Iron WorksCorp., a company hired by the defendant Clinton Graham, the president of the defendant C.G.Plumbing Supply Corp. (hereinafter C.G. Plumbing), to construct a shed on property owned byGraham and leased to C.G. Plumbing.
The plaintiff established his prima facie entitlement to judgment as a matter of law on theissue of liability on his Labor Law § 240 (1) cause of action by submitting his depositiontestimony and the deposition testimony of a witness, which demonstrated that he fell from anunsecured extension ladder when it slid out from underneath him, and that the failure to securethe ladder proximately caused his injuries (see Gordon v Eastern Ry. Supply, 82 NY2d555, 561-562 [1993]; Rivera v 800 Alabama Ave., LLC, 70 AD3d 798, 799 [2010];Razzak v NHS Community Dev. Corp., 63 AD3d 708, 708-709 [2009]; Gilhooly vDormitory Auth. of State of N.Y., 51 AD3d 719, 720 [2008]; Ricciardi v BernardJanowitz Constr. Corp., 49 AD3d 624, 625 [2008]). In opposition, the defendants failed toraise a triable issue of fact as to whether the plaintiff's conduct was the sole proximate cause ofthe accident (see McCaffery v Wright & Co. Constr., Inc., 71 AD3d 842, 842 [2010];Yin Min Zhu v Triple L. Group, LLC, 64 AD3d 590 [2009]; Barr v 157 5 Ave.,LLC, 60 [*2]AD3d 796, 797 [2009]; Mingo vLebedowicz, 57 AD3d 491, 493 [2008]). Contrary to the defendants' contention, the forkliftwas not a proper safety device within the meaning of Labor Law § 240 (1) and, thus, theplaintiff's failure to use the forklift to complete his task, rather than the ladder, could not havebeen the sole proximate cause of the accident (see Willard v Thomas Simone & Son Bldrs.,Inc., 45 AD3d 1276, 1277-1278 [2007]). Accordingly, the Supreme Court erred in denyingthe plaintiff's motion for summary judgment on the issue of liability on the cause of actionalleging a violation of Labor Law § 240 (1). Mastro, J.P., Florio, Belen and Chambers, JJ.,concur.