| Noble v 260-261 Madison Ave., LLC |
| 2012 NY Slip Op 07895 [100 AD3d 543] |
| November 20, 2012 |
| Appellate Division, First Department |
| Terrence Noble, Respondent, v 260-261 Madison Avenue,LLC, et al., Appellants, et al., Defendants. 260-261 Madison Avenue, LLC, et al., Third-PartyPlaintiffs-Appellants, v United Staffing Systems, Inc., et al., Third-PartyDefendants. |
—[*1] Wingate Russotti Shapiro & Halperin, LLP, New York (William P. Hepner of counsel), forrespondent.
Amended order, Supreme Court, New York County (Eileen A. Rakower, J.), entered May 8,2012, which, to the extent appealed from as limited by the briefs, denied defendants-appellants'motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim, andgranted plaintiff's cross motion for partial summary judgment on his Labor Law § 240 (1)claim as against defendants-appellants 260-261 Madison Avenue, LLC and Ziruale Construction,Inc. (defendants), unanimously modified, on the law, to deny the cross motion, and otherwiseaffirmed, without costs.
Defendants' evidence was sufficient to defeat plaintiff's cross motion for partial summaryjudgment on the Labor Law § 240 (1) claim. Defendants' evidence established, atminimum, that triable issues exist whether the 10-foot ladder provided to plaintiff, under thecircumstances (including a measured ceiling height of 10 feet, 7 inches), constituted an adequatesafety device for the air duct removal work he was assigned to perform. Specifically, triableissues exist as to whether, inter alia: (1) the six-foot-tall plaintiff was able to stand on the sixth orseventh rung of the 10-step ladder (as he claimed) and still have the necessary headroom toaccomplish his work; (2) whether plaintiff actually stood lower down on the ladder in view of theapparent ceiling height constraints, such as might allow him ready hand access to the ladder forsupport; and (3) [*2]whether the admittedly stable ladder requiredanother worker to hold it secure if plaintiff was working from a lower position than claimed,particularly considering that plaintiff admitted he only fell after the ceiling conduit pipe, ontowhich he purportedly held for support, broke free, resulting in his fall. Since there was noevidence that plaintiff was leaning or had to reach to perform his work, triable issues existwhether plaintiff actually stood high enough on the ladder as would warrant securing the ladderbeneath him and, further, assuming arguendo, the ladder was so secured, whether it would haveprevented his fall once the conduit pipe broke free from its ceiling support system.
Defendants' evidence also raises a factual issue as to whether plaintiff's own acts oromissions were the sole cause of his accident; namely, whether an adequate safety device wasavailable (i.e., the 10-foot ladder), but arguably not properly utilized by plaintiff (see generally Robinson v East Med. Ctr.,LP, 6 NY3d 550 [2006]; cf.Gallagher v New York Post, 14 NY3d 83 [2010]). Plaintiff did not state he was unableto support himself by holding onto the ladder (which was in front of him), but only stated that hehad found himself holding onto the conduit rod for support. While a plaintiff may be grantedpartial summary judgment based on his own testimony as to how an accident happened, andnotwithstanding that he was the sole witness to the accident, such motion may also be deniedwhere, as here, defendants present evidence that raises factual issues whether the accidentoccurred in the manner the plaintiff claimed, and whether he was the sole cause of his accident(see generally Woszczyna v BJWAssoc., 31 AD3d 754 [2d Dept 2006]; cf. Klein v City of New York, 89 NY2d833 [1996]; Rodriguez v Forest City Jay St. Assoc., 234 AD2d 68 [1st Dept 1996]).
We have considered defendants' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Renwick and Freedman, JJ.