Opinion
1339
June 5, 2003.
Order, Supreme Court, Bronx County (George Friedman, J.), entered on or about January 16, 2002, which upon the grant of reargument, granted plaintiffs' previously denied motion for partial summary judgment on the issue of liability with respect to their Labor Law § 240(1) claim, unanimously affirmed, without costs.
Irving Gertel, for plaintiffs-respondents.
James W. Borkowski, for defendants-respondents.
Before: Buckley, P.J., Mazzarelli, Saxe, Williams, Marlow, JJ.
Assuming, arguendo, that plaintiff's motion for reargument was in fact a successive summary judgment motion, there was sufficient cause to support the motion court's decision to entertain the motion since the record demonstrated that plaintiff was, in fact, entitled to summary judgment as to liability on his Labor Law § 240(1) claim (see Varsity Tr., Inc. v. The Bd. of Educ. of the City of New York, 300 A.D.2d 38, 39; Justus Recycling Corp. v. A.F.C. Enters., Inc., 290 A.D.2d 279;Freeze Right Refrig. A.C. Servs., Inc. v. City of New York, 101 A.D.2d 175, 180).
Inasmuch as it is undisputed that the ladder which plaintiff was using to descend from his elevated work site collapsed and thus did not protect him from falling, a violation of Labor Law § 240(1) is established (see Tavarez v. Weissman, 297 A.D.2d 245, 246; Garcia v. 1122 E. 180thSt. Corp., 250 A.D.2d 550), and defendant building owners are absolutely liable for such violation regardless of whether they controlled or supervised plaintiff's work (see Gordon v. E. Supply Ry., 82 N.Y.2d 555, 559). Nor can defendant owners avoid liability by reason of the circumstance that a scaffold was available somewhere else on the work site or that plaintiff could have used a step ladder to alight from the first-floor fire escape (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513;Tavarez v. Weissman, 297 A.D.2d at 247; Garcia v. 1122 E. 180thSt. Corp., 250 A.D.2d at 551).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.