Opinion
2015-03-19
Angel ORTIZ, Plaintiff–Appellant, v. BURKE AVENUE REALTY, INC., et al., Defendants–Respondents.
Ephrem J. Wertenteil, New York, for appellant. Callan, Koster, Brady & Nagler, LLP, New York (Jordan I. Rothman of counsel), for Burke Avenue Realty, Inc., respondent.
Ephrem J. Wertenteil, New York, for appellant. Callan, Koster, Brady & Nagler, LLP, New York (Jordan I. Rothman of counsel), for Burke Avenue Realty, Inc., respondent.
Barry, McTiernan & Moore, LLC, New York (Laurel A. Wedinger of counsel), for S & D Beauty Supply and Diogo Diallo, respondents.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered March 13, 2014, which denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff established entitlement to judgment as a matter of law by submitting evidence showing that he had been standing on the extension ladder performing work for several minutes, when the feet of the ladder suddenly slid backwards away from the wall and fell ( see Estrella v. GIT Indus., Inc., 105 A.D.3d 555, 963 N.Y.S.2d 110 [1st Dept.2013]; Dwyer v. Central Park Studios, Inc., 98 A.D.3d 882, 883, 951 N.Y.S.2d 16 [1st Dept.2012] ). Plaintiff was not required to show that the ladder was defective to meet his burden ( see Siegel v. RRG Fort Greene, Inc., 68 A.D.3d 675, 891 N.Y.S.2d 398 [1st Dept.2009] ).
In opposition, defendants failed to raise a triable issue of fact. Their contentions that plaintiff slipped, and that his own actions caused the ladder to move, are unsupported and based on speculation ( see Angamarca v. New York City Partnership Hous. Dev. Fund Co., Inc., 56 A.D.3d 264, 866 N.Y.S.2d 659 [1st Dept.2008] ), and the fact plaintiff did not ask his brother to hold the ladder also does not raise a triable issue as to sole proximate causation ( see McCarthy v. Turner Constr., Inc., 52 A.D.3d 333, 859 N.Y.S.2d 648 [1st Dept.2008] ). That the accident was not witnessed does not bar judgment in plaintiff's favor, where nothing in the record contradicts his version of the events or raises an issue as to his credibility ( see Klein v. City of New York, 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458 [1996]; Verdon v. Port Auth. of N.Y. & N.J., 111 A.D.3d 580, 581, 977 N.Y.S.2d 4 [1st Dept.2013] ). The inconsistencies in the record relied upon by defendants, including the conflicting testimony as to who provided the subject ladder, are irrelevant to the dispositive issue of whether defendants provided plaintiff with proper protection under the statute ( see Lipari v. AT Spring, LLC, 92 A.D.3d 502, 503–504, 938 N.Y.S.2d 303 [1st Dept.2012]; Romanczuk v. Metropolitan Ins. & Annuity Co., 72 A.D.3d 592, 899 N.Y.S.2d 228 [1st Dept.2010] ). Furthermore, defendants' argument that plaintiff was not engaged in covered activity at the time of the accident, raised for the first time on appeal, is not availing. MAZZARELLI, J.P., DeGRASSE, RICHTER, FEINMAN, JJ., concur.