Opinion
1170 CA 17–00732
02-02-2018
David M. BONCZAR, Plaintiff–Respondent, v. AMERICAN MULTI–CINEMA, INC., doing business as AMC Theatres Webster 12, as Successor in Interest to Loews Boulevard Cinemas, Inc., formerly known as Loew's Boulevard Corp. and/or Loews Theater Management Corp., Defendant–Appellant.
RUSSO & TONER LLP, NEW YORK CITY (JOSH H. KARDISCH OF COUNSEL), FOR DEFENDANT–APPELLANT. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
RUSSO & TONER LLP, NEW YORK CITY (JOSH H. KARDISCH OF COUNSEL), FOR DEFENDANT–APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Plaintiff commenced this action seeking damages for injuries he sustained when he fell from a ladder in the lobby of a movie theater owned by defendant. At the time of the accident, plaintiff was updating a fire alarm system on behalf of his employer, which was subcontracted by the company hired by defendant to renovate the theater. We agree with defendant that Supreme Court erred in granting plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1). "In order to establish his entitlement to judgment on liability as a matter of law, plaintiff was required to ‘show that the statute was violated and the violation proximately caused his injury’ " ( Miller v. Spall Dev. Corp., 45 A.D.3d 1297, 1297, 846 N.Y.S.2d 496 [4th Dept. 2007], quoting Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ). Plaintiff did not know why the ladder wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so. We thus conclude that plaintiff failed to meet his initial burden on the motion. "[T]here is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident" ( 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] ; see generally Cullen v. AT & T, Inc., 140 A.D.3d 1588, 1591, 32 N.Y.S.3d 757 [4th Dept. 2016] ).
It is hereby ORDERED that the order so appealed from is reversed on the law without costs and the motion is denied.
All concur except Whalen, P.J., and Lindley, J., who dissent and vote to affirm in the following memorandum:
We respectfully dissent and would affirm. We conclude that plaintiff met his initial burden of establishing his entitlement to partial summary judgment on the issue of liability pursuant to Labor Law § 240(1) by presenting evidence that the A-frame ladder from which he fell wobbled or shifted and therefore failed to provide him with proper protection, and that this violation of section 240(1) was a proximate cause of his injuries (see Arnold v. Baldwin Real Estate Corp., 63 A.D.3d 1621, 1621, 880 N.Y.S.2d 418 [4th Dept. 2009] ; see also Kirbis v. LPCiminelli, Inc., 90 A.D.3d 1581, 1582, 935 N.Y.S.2d 783 [4th Dept. 2011] ). We further conclude that, in opposition to plaintiff's motion, defendant submitted no evidence that had not already been submitted by plaintiff and thus, contrary to defendant's contention in opposition to the motion, failed to raise a triable issue of fact with respect to whether plaintiff's own actions were the sole proximate cause of his injuries (see Siedlecki v. City of Buffalo, 61 A.D.3d 1414, 1415, 877 N.Y.S.2d 584 [4th Dept. 2009] ; Burke v. APV Crepaco, 2 A.D.3d 1279, 1279, 770 N.Y.S.2d 510 [4th Dept. 2003] ). The fact that plaintiff could not identify why the ladder shifted does not undermine his entitlement to partial summary judgment because a plaintiff who falls from a ladder that "malfunction [s] for no apparent reason" is entitled to "a presumption that the ladder ... 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] ; see O'Brien v. Port Auth. of N.Y. & N.J., 29 N.Y.3d 27, 33, 52 N.Y.S.3d 68, 74 N.E.3d 307 [2017] ). Although plaintiff testified at his deposition that he did not recall whether he checked the positioning of the ladder or checked that it was "locked into place," he also testified that the ladder was upright and "fully open" near the middle of a small room, and we conclude that it would be unduly speculative for a jury to infer from plaintiff's testimony that the sole proximate cause of the accident was his alleged failure to check its positioning or its locking mechanism (see Pichardo v. Urban Renaissance Collaboration Ltd. Partnership, 51 A.D.3d 472, 473, 857 N.Y.S.2d 144 [1st Dept. 2008] ; Handley v. White Assoc., 288 A.D.2d 855, 856, 732 N.Y.S.2d 783 [4th Dept. 2001] ). A party moving for summary judgment "need not specifically disprove every remotely possible state of facts on which its opponent might win the case[, and plaintiff's] showing here was adequate to shift the burden to [defendant] ‘to produce evidentiary proof ... sufficient to establish the existence of material issues of fact,’ " which defendant failed to do ( Ferluckaj v. Goldman Sachs & Co., 12 N.Y.3d 316, 320, 880 N.Y.S.2d 879, 908 N.E.2d 869 [2009] ).
The majority's reliance on Blake is misplaced. The injured worker in that case sustained his injuries when the upper portion of his extension ladder retracted, and he testified at trial that he was not sure whether he had locked the extension clips, i.e., equipment meant to hold the upper portion of the ladder in place ( id. at 283–284, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). Based on the injured worker's uncertainty and the fact that the accident occurred in the very manner that the extension clips were meant to prevent, it was logical for the jury to infer both that he had failed to lock the clips and that his negligence in that regard was the sole proximate cause of his injuries (see id. at 291, 771 N.Y.S.2d 484, 803 N.E.2d 757 ; see generally Schneider v. Kings Hwy. Hosp. Ctr., 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221 [1986] ). Here, given that an A-frame ladder can wobble or shift for various reasons unrelated to its positioning or locking mechanism, and even for no apparent reason (see Alvarez v. Vingsan L.P., 150 A.D.3d 1177, 1179, 57 N.Y.S.3d 160 [2d Dept. 2017] ), we conclude that plaintiff's deposition testimony does not support a nonspeculative inference that the sole proximate cause of his injuries was his alleged failure to check the positioning of the ladder or whether it was locked into place (see generally Bombard v. Christian Missionary Alliance of Syracuse, 292 A.D.2d 830, 831, 739 N.Y.S.2d 516 [4th Dept. 2002] ).