Opinion
05-09-2017
Masso KEBE, Plaintiff–Respondent, v. GREENPOINT–GOLDMAN CORP., et al., Defendants–Appellants, Carlyle Realty V, L.P., et al., Defendants.
Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for appellants. Edelman, Krasin & Jaye PLLC, Westbury (Allen J. Rosner of counsel), for respondent.
Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for appellants.
Edelman, Krasin & Jaye PLLC, Westbury (Allen J. Rosner of counsel), for respondent.
SWEENY, J.P., RICHTER, ANDRIAS, FEINMAN, KAHN, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered August 18, 2016, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim as against defendants Greenpoint–Goldman Corp., Greenpoint Goldman SM LLC, GFI Development Company, LLC, Atara Vanderbilt, LLC and Triton Construction Company, LLC, unanimously affirmed, without costs.
As the Court of Appeals recently reiterated in O'Brien v. Port Auth. of N.Y. & N.J. , 29 N.Y.3d 27, 28, 52 N.Y.S.3d 68, 74 N.E.3d 307 [2017], "The fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240(1)." "Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ). However, "[i]n cases involving ladders or scaffolds that collapse or malfunction for no apparent reason," the Court of Appeals has applied "a presumption that the ladder or scaffolding device was not good enough to afford proper protection" (Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] )—a presumption that the O'Brien Court recognized but found inapplicable to the facts before it, which involved a fall from an exterior stairway.
Here, plaintiff established prima facie that Labor Law § 240(1) was violated through his testimony that the ladder from which he fell wobbled during its use (see e.g. Hill v. City of New York, 140 A.D.3d 568, 35 N.Y.S.3d 307 [1st Dept.2016] ; Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 780 N.Y.S.2d 558 [1st Dept.2004] ; Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc. 118 A.D.3d 524, 988 N.Y.S.2d 58 [1st Dept.2014] ), that two of the ladder's rubber feet were missing (see Orphanoudakis v. Dormitory Auth. of State of N.Y., 40 A.D.3d 502, 837 N.Y.S.2d 61 [1st Dept.2007] ), and that the ladder spun and fell over (see Blake, 1 N.Y.3d at 289, n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 ).
In opposition, defendants failed to raise triable issues of fact as to whether the ladder provided proper protection. The testimony of a superintendent that he saw the ladder standing when he arrived at the scene one-half to one hour after plaintiff's fall is insufficient to raise an issue of fact. In the absence of any evidence that the ladder was not moved or repositioned after plaintiff fell, it would be speculative to infer from the superintendent's testimony that the ladder did not fall over. Furthermore, the superintendent's testimony does not negate plaintiff's testimony that the ladder began to spin, causing him to fall. While a coworker submitted an affidavit disputing whether the ladder lacked its rubber feet, he did not address the happening of the accident in any way and did not deny that the ladder began to spin. Furthermore, unlike O'Brien, this case does not present a battle of the experts.