Opinion
January 6, 2000
Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered October 23, 1998, which granted plaintiffs' motion for partial summary judgment as to liability, unanimously affirmed, with costs.
Stephen G. Winn, for plaintiffs-respondents.
Michael P. Versichelli, for defendants-appellants.
NARDELLI, J.P., TOM, MAZZARELLI, ELLERIN, FRIEDMAN, JJ.
Plaintiffs demonstrated that defendants violated their non-delegable duty, pursuant to Labor Law § 240 Lab.(1), to provide proper and adequate safety devices to afford proper protection to plaintiff employee, who was subject to elevation-related hazards (see, Correia v. Professional Data Mgt., Inc., ___ A.D.2d ___, 693 N.Y.S.2d 596, 599). Plaintiff proved that the ladder slipped, collapsed or otherwise failed, and such proof is sufficient "to establish that the ladder did not provide proper protection" (see,Custer v. Cortland Hous. Auth., ___ A.D.2d ___, 1999 N.Y. App. Div. LEXIS 11229). Defendants, in response, failed to raise a triable question since they offered no more than speculation as to how the accident might have happened (see, Kijak v. 330 Madison Ave. Corp., 251 A.D.2d 152, 153), and the bare hope that they would be able to undermine plaintiff employee's credibility at trial on cross-examination (see, e.g., Billboard Sportswear v. Kapadia, 237 A.D.2d 135). There is no evidence that plaintiff's own conduct was the sole proximate cause of the accident (cf., Xirakis v. 1115 Fifth Ave. Corp., 226 A.D.2d 452, 453; Tate v. Clancy-Cullen Storage Co., 171 A.D.2d 292, 296), and, under Labor Law § 240 Lab.(1), liability is absolute; contributory negligence is irrelevant (see, Public Adm'r of Bronx County v. Trump Village Constr. Corp., 177 A.D.2d 258, 259). We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.