Opinion
12976 Index No. 22938/15E Case No. 2020-03472
01-28-2021
Jose Luis MORALES, Plaintiff–Appellant, v. 2400 RYER AVENUE REALTY, LLC, et al., Defendants–Respondents, Pioneer Supermarket, Defendant.
William Schwitzer & Associates, P.C., New York (D. Allen Zachary of counsel), for appellant. Garbarini & Scher, P.C., New York (Thomas M. Cooper of counsel), for respondents.
William Schwitzer & Associates, P.C., New York (D. Allen Zachary of counsel), for appellant.
Garbarini & Scher, P.C., New York (Thomas M. Cooper of counsel), for respondents.
Acosta, P.J., Webber, Oing, Scarpulla, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 18, 2020, which denied plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim against defendants 2400 Ryer Avenue Realty, LLC and 2400 C & F Food Corp. (collectively defendants), unanimously reversed, on the law, without costs, and the motion granted.
The evidence that the ladder on which plaintiff was standing at the time of his accident slipped out from under him, causing him to fall, was sufficient to establish his prima facie entitlement to summary judgment under Labor Law § 240(1) (see Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ; Salinas v. 64 Jefferson Apts., LLC, 170 A.D.3d 1216, 1222, 97 N.Y.S.3d 136 [2d Dept. 2019] ; Rom v. Eurostruct, Inc., 158 A.D.3d 570, 571, 71 N.Y.S.3d 57 [1st Dept. 2018] ; Mingo v. Lebedowicz, 57 A.D.3d 491, 493, 869 N.Y.S.2d 163 [2d Dept. 2008] ).
In opposition, defendants failed to raise an issue of fact as to whether plaintiff was a recalcitrant worker or otherwise the sole proximate cause of his accident. "A worker's decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident," and plaintiff here "gave a specific reason why he used the ladder in the closed position" ( Noor v. City of New York, 130 A.D.3d 536, 540, 15 N.Y.S.3d 13 [1st Dept. 2015], lv dismissed 27 N.Y.3d 975, 31 N.Y.S.3d 451, 50 N.E.3d 919 [2016] ). Defendants also did not elicit any evidence that it would have been plaintiff's " ‘normal and logical response’ " to use the taller ladder that they allege was available to plaintiff at the time of his accident ( Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592 [2005] ). Similarly, as for plaintiff's putative recalcitrance, defendants failed to establish that, among other things: plaintiff knew that the taller ladder was available for his use; he was expected to use the taller ladder for his work; he " ‘chose for no good reason not to do so’ " ( Biaca–Neto v. Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1168, 121 N.Y.S.3d 753, 144 N.E.3d 363 [2020], quoting Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ); and, he refused to follow a specific instruction to use the taller ladder for his work (see e.g. Valdez v. City of New York, 189 A.D.3d 425, 132 N.Y.S.3d 777, 2020 N.Y. Slip Op. 07150 [1st Dept. 2020] ; White v. 31–01 Steinway, LLC, 165 A.D.3d 449, 451–452, 85 N.Y.S.3d 426 [1st Dept. 2018] ). Ultimately, "[d]efendants' contentions would amount to, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) violation" ( Encarnacion v. 3361 Third Ave. Hous. Dev. Fund Corp., 176 A.D.3d 627, 629, 112 N.Y.S.3d 31 [1st Dept. 2019] ). Accordingly, plaintiff's motion should have been granted.