| Robinson v Goldman Sachs Headquarters, LLC |
| 2012 NY Slip Op 03824 [95 AD3d 1096] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Royston Robinson et al., Appellants, v Goldman SachsHeadquarters, LLC, et al., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Elizabeth L. Knapp ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Vaughan, J.), dated June 15, 2011, which denied theirmotion for summary judgment on the issue of liability on the cause of action alleging a violationof Labor Law § 240 (1).
Ordered that the order is affirmed, with costs.
"In order to prevail on a Labor Law § 240 (1) cause of action, [a] plaintiff mustestablish that the statute was violated and that the violation was a proximate cause of his [or her]injuries" (Delahaye v Saint AnnsSchool, 40 AD3d 679, 682 [2007]; see Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]; Robinson v East Med. Ctr., LP, 6NY3d 550 [2006]). Although the "mere fact that a plaintiff fell from a ladder does not, inand of itself, establish" a violation of the statute (Delahaye v Saint Anns School, 40AD3d at 682; see Costello v Hapco Realty, 305 AD2d 445, 447 [2003]), a plaintiff mayestablish his or her prima facie entitlement to judgment as a matter of law on a Labor Law§ 240 (1) cause of action by showing both that he or she fell from a defective or unsecuredladder, and that the defect or failure to secure the ladder was a proximate cause of his or herinjuries (see Melchor v Singh, 90AD3d 866, 868 [2011]; Gilhooly vDormitory Auth. of State of N.Y., 51 AD3d 719, 720 [2008]; Ricciardi v Bernard Janowitz Constr.Corp., 49 AD3d 624, 625 [2008]).
Here, the plaintiff Royston Robinson (hereinafter Robinson), a sheet metal worker, wasinjured when he fell approximately five feet from an unsecured, eight-foot, wooden A-frameladder. The plaintiffs established their prima facie entitlement to judgment as a matter of law onthe Labor Law § 240 (1) cause of action by submitting a transcript of the depositiontestimony of Robinson, the sole witness to the accident, in which he asserted that his fall fromthe ladder occurred when one of its front feet "popped out" or "kicked out," the foot of the ladderbegan "walking the floor," and the ladder fell over (see Gilhooly v Dormitory Auth. of Stateof N.Y., 51 AD3d at 720; Ricciardi v Bernard Janowitz Constr. Corp., 49 AD3d at625; Salon v Millinery Syndicate,Inc., 47 AD3d 914, 915 [2008]; Boe v Gammarati, 26 AD3d 351, 352 [2006]; Granillo v Donna Karen Co., 17 AD3d531, 531 [2005]).[*2]
In opposition, however, the defendants raised a triableissue of fact as to whether the foot of the ladder simply kicked out and the ladder fell over, asRobinson testified, or whether Robinson's own carelessness or the manner in which he used theladder was the sole proximate cause of his fall (see Destefano v City of New York, 39 AD3d 581, 582 [2007];Bahrman v Holtsville Fire Dist., 270 AD2d 438, 439 [2000]; cf. Gilhooly vDormitory Auth. of State of N.Y., 51 AD3d at 720; Ricciardi v Bernard Janowitz Constr.Corp., 49 AD3d at 625; Salon v Millinery Syndicate, Inc., 47 AD3d at 915). Thedefendants offered an accident report indicating that Robinson had previously stated, within twodays after the accident, that he lost his footing or balance and fell off the ladder. That accidentreport did not indicate that the foot of the ladder kicked out, that the ladder "walked the floor," orthat the ladder fell over, as Robinson later testified at his deposition. The defendants also offeredtwo additional accident reports indicating that, on the day of the accident, Robinson stated that hefell off the ladder but did not mention that the foot of the ladder kicked out or the ladder fellover. Accordingly, the Supreme Court properly denied the plaintiffs' motion for summaryjudgment on the issue of liability on the cause of action alleging a violation of Labor Law§ 240 (1) (see Artoglou v GeneScappy Realty Corp., 57 AD3d 460, 461 [2008]; see also Delahaye v Saint AnnsSchool, 40 AD3d at 682-683; Costello v Hapco Realty, 305 AD2d at 447; cf.Melchor v Singh, 90 AD3d at 868-869; LaGiudice v Sleepy's Inc., 67 AD3d 969, 971 [2009]; Barr v 157 5 Ave., LLC, 60 AD3d796, 797 [2009]). Dillon, J.P., Eng, Belen and Sgroi, JJ., concur.