Opinion
570081/04.
Decided July 7, 2004.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County, entered on or about February 6, 2003 (Arthur F. Engoron, J.) which granted defendants' motion for summary judgment dismissing the complaint.
Order entered on or about February 6, 2003 (Arthur F. Engoron, J.) affirmed, with $10 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Plaintiff's common-law negligence and Labor Law § 200 claims were properly dismissed, there being no evidentiary showing that defendants exercised supervisory control over plaintiff's work ( see Comes v. New York State Elec. Gas Corp., 82 NY2d 876, 877-878; Lombardi v. Stout, 80 NY2d 290, 295) or had actual or constructive notice of any defect in the ladder from which plaintiff fell ( see Schuler v. Kings Plaza Shopping Ctr., 294 AD2d 556, 558; Giambalvo v. Chemical Bank, 260 AD2d 432). Plaintiff acknowledged in his deposition testimony that he used that particular ladder on many prior occasions without incident and that the ladder "looked fine" and did not "shift or move in any way" prior to his fall. The affidavit submitted by plaintiff in opposing summary judgment, stating that during the months preceding the accident the ladder "always made a creaking noise and shook a bit," appears to have been tailored to avoid the consequences of plaintiff's prior sworn testimony and is insufficient to require a trial on the issue of constructive notice ( see Perez v. Bronx Park S. Assoc., 285 AD2d 402, 404, lv denied 97 NY2d 610).
This constitutes the decision and order of the court.