| Canas v Harbour at Blue Point Home Owners Assn., Inc. |
| 2012 NY Slip Op 07082 [99 AD3d 962] |
| October 24, 2012 |
| Appellate Division, Second Department |
| Rodolfo Canas, Appellant, v Harbour at Blue Point HomeOwners Association, Inc., et al., Respondents. (And a Third-PartyAction.) |
—[*1] Callan, Koster, Brady & Brennan LLP, New York, N.Y. (Michael P. Kandler and David Loreof counsel), for respondents.
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, Suffolk County (Asher, J.), dated June 28,2011, as denied that branch of his motion which was for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1) is granted.
On November 20, 2006, during the course of the plaintiff's employment with JAM Painting,Inc., he allegedly was injured when an unsecured ladder upon which he was standing slippedfrom beneath him, and caused him to fall while he was painting the exterior of a condominiumbuilding. The plaintiff's employer had been retained by the defendant Harbor at Blue Point HomeOwners Association, Inc., the home owners association of the condominium, which, in turn, hadretained the defendant Camco Services of New York, Inc., as the property manager for thecondominium complex. Following the accident, the plaintiff commenced this action against thedefendants, alleging, among other things, a violation of Labor Law § 240 (1). The plaintiffmoved, inter alia, for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and now appeals from so much of an order as denied that branch of hismotion.
"Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners. . . for failing to provide safety devices necessary for protection to workers subjectto the risks inherent in elevated work sites who sustain injuries proximately caused by thatfailure" (Jock v Fien, 80 NY2d 965, 967-968 [1992]). Although "[a] fall from a ladder,by itself, is not sufficient to impose liability under Labor Law § 240 (1)," liability will beimposed when the evidence shows "that the subject ladder was . . . inadequatelysecured and that . . . the failure to secure the ladder, was a substantial factor incausing the plaintiff's injuries" (Melchorv Singh, 90 AD3d 866, 868 [2011]). Here, [*2]theplaintiff made a prima facie showing of his entitlement to judgment as a matter of law on theissue of liability under that statute by showing that, although he was provided with a ladder, asrequired by the statute, the ladder was not secured so as to prevent it and him from falling.Further, there was no assistance provided in holding the ladder while the plaintiff painted (see Hossain v Kurzynowski, 92 AD3d722 [2012]; Santiago v Rusciano &Son, Inc., 92 AD3d 585 [2012];Georgia v Urbanski, 84 AD3d 1569 [2011]; Kijak v 330 Madison Ave. Corp.,251 AD2d 152 [1998]).
The burden then shifted to defendants to "present[ ] some evidence that the device furnishedwas adequate and properly placed and that the conduct of the plaintiff may be the sole proximatecause of his . . . injuries" (Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188[2007]). In opposition to the plaintiff's prima facie showing, the defendants failed to raise atriable issue of fact as to whether the plaintiff's conduct was the sole proximate cause of theaccident (see Hossain vKurzynowski, 92 AD3d 722 [2012]). Since the plaintiff was provided only with anunsecured ladder and no safety devices, the plaintiff cannot be held solely at fault for his injuries(see Velasco v Green-WoodCemetery, 8 AD3d 88 [2004]; Davis v Selina Dev. Corp. of N.Y., 302 AD2d304 [2003]). Accordingly, the Supreme Court should have granted that branch of the plaintiff'smotion which was for summary judgment on the issue of liability on the cause of action alleginga violation of Labor Law § 240 (1). Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.[Prior Case History: 2011 NY Slip Op 31844(U).]