| Nunez v City of New York |
| 2012 NY Slip Op 07645 [100 AD3d 724] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Ismael Nunez, Respondent, v City of New York et al.,Appellants. |
—[*1] Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, New York,N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), datedNovember 9, 2011, as granted the plaintiff's motion 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 theplaintiff's motion for summary judgment on the issue of liability on the cause of action alleging aviolation of Labor Law § 240 (1) is denied.
The plaintiff allegedly sustained personal injuries when he fell from a ladder while workingon an asbestos-removal project in a New York City public school. The Supreme Court erred ingranting the plaintiff's motion for summary judgment on the issue of liability on the cause ofaction alleging a violation of Labor Law § 240 (1). "To impose liability pursuant to LaborLaw § 240 (1), there must be a violation of the statute and that violation must be aproximate cause of the plaintiff's injuries" (Tama v Gargiulo Bros., Inc., 61 AD3d 958, 960 [2009]; see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 287 [2003]). "Where there is no statutory violation, or wherethe plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery underLabor Law § 240 (1)" (Treu vCappelletti, 71 AD3d 994, 997 [2010]).
In support of his motion for summary judgment, the plaintiff submitted a copy of thetranscript of his testimony at a hearing pursuant to General Municipal Law § 50-h. At thathearing he testified that the 10-foot A-frame ladder from which he fell was in an open and lockedposition at the time of the accident, and that it was positioned on an uneven floor composed ofbroken concrete and sand or dirt. He testified that he was standing near the top of the ladder andwas leaning forward to apply a plastic covering to the wall when the ladder suddenly moved andhe fell forward with the ladder to the floor. However, the plaintiff admitted that he himself hadplaced the ladder, and that he had no problems using it prior to the accident. The plaintiff alsosubmitted an affidavit from a co-worker who also averred that the ladder was in an open positionat the time of [*2]the accident. However, the plaintiff alsosubmitted an incident report and unsworn statements of the co-worker and the plaintiff'ssupervisor in which they indicated that at the time of the accident the ladder was in a closedposition propped up against the wall. In light of these factually irreconcilable accounts, theplaintiff failed to eliminate triable issues of fact as to whether the ladder provided properprotection, and whether the ladder's failure to provide proper protection was a proximate cause ofthe injuries (see Reyes v Khan, 90AD3d 734 [2011]; Delahaye v SaintAnns School, 40 AD3d 679, 682 [2007]; Seepersaud v City of New York, 38 AD3d 753, 754 [2007];Taglioni v Harbor Cove Assoc., 308 AD2d 441, 442 [2003]; Tersigni v City of NewYork, 300 AD2d 389, 390 [2002]; Chan v Bed Bath & Beyond, 284 AD2d 290[2001]; Boguszewski v Solo Salon & Spa, 309 AD2d 777, 778 [2003]; Costello vHapco Realty, 305 AD2d 445, 446 [2003]).
Since the plaintiff did not establish his prima facie entitlement to judgment as a matter oflaw, the motion should have been denied without regard to the sufficiency of the defendants'opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Florio, J.P., Dickerson, Sgroi and Miller, JJ., concur.