| Reyes v Khan |
| 2011 NY Slip Op 09109 [90 AD3d 734] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Jose Reyes, Appellant-Respondent, v Camille Khan,Respondent-Appellant. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Kings County (Bunyan, J.), entered January 18, 2011, as deniedhis motion for summary judgment on the issue of liability on his cause of action alleging aviolation of Labor Law § 240 (1), and the defendant cross-appeals, as limited by her brief,from so much of the same order as denied that branch of her cross motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1).
Ordered that the order is affirmed, without costs or disbursements.
In support of his motion for summary judgment on the issue of liability on his cause of actionalleging a violation of Labor Law § 240 (1), the plaintiff submitted evidence suggestingthat a proximate cause of his accident may have been the placement of the subject ladder on aloose soil surface and/or the failure to adequately secure the ladder in view of the rigorous natureof the work he was performing. Conversely, the defendant produced evidence indicating that theladder was not defective and afforded proper protection for the task assigned to the plaintiff, andthat the plaintiff's own performance of the work in an unnecessarily dangerous and impropermanner may have been the sole proximate cause of the accident. Given the triable issues of factraised by these competing submissions, the Supreme Court properly denied the plaintiff's motionfor summary judgment on his cause of action alleging a violation of Labor Law § 240 (1),and properly denied that branch of the defendant's cross motion which was for summaryjudgment dismissing that cause of action (see Canosa v Holy Name of Mary R.C. Church, 83 AD3d 635, 637[2011]; Bin Gu v Palm Beach Tan,Inc., 81 AD3d 867 [2011]; Santiago v Fred-Doug 117, L.L.C., 68 AD3d 555, 556 [2009]; Canino v Electronic Tech. Co., 28AD3d 932, 933-934 [2006]; Boguszewski v Solo Salon & Spa, 309 AD2d 777[2003]). Mastro, A.P.J., Chambers, Austin and Miller, JJ., concur.