The supplemental affidavit of the director of safety of defendant Judlau Contracting, Inc., stating that he instructed plaintiff before the accident to use an extension ladder to access a supported scaffold, creates only a feigned issue of fact by contradicting his prior deposition testimony (see Tuzzolino v Consolidated Edison Co. of N.Y., 160 A.D.3d 568, 569 [1st Dept 2018]). Given that the ladder had already been set up by another worker when plaintiff arrived at the site, plaintiff's failure to secure the ladder or ensure that it was properly set up was at most comparative negligence (see Rodriguez v BSREP UA Heritage LLC, 181 A.D.3d 537, 538 [1st Dept 2020]; Concepcion v 333 Seventh LLC, 162 A.D.3d 493, 494 [1st Dept 2018]).
, 4 N.Y.3d 35, 39-40 [2004]). Labarbera's and plaintiff's conflicting testimony as to whether plaintiff disregarded instructions and failed to install railings on the scaffolding before beginning work and Hopkins's self-contradiction about whether the railings would have protected plaintiff from his fall are only of concern for considering plaintiff's potential comparative negligence, an issue not relevant under Labor Law § 240 (1) (see Concepcion v 333 Seventh LLC, 162 A.D.3d 493, 494 [1st Dept 2018]). Even if there were evidence that adequate safety devices were readily available at the work site and that plaintiff knew he was expected to use them, it would not render plaintiff the sole cause of the accident, because the unsecured scaffold with unlevel, uneven, and unsecured floor planks initially caused him to lose his balance and fall (see Mora v Wythe and Kent Realty LLC, 171 A.D.3d 426 [1st Dept 2019]).
, 4 N.Y.3d 35, 39–40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ). Labarbera's and plaintiff's conflicting testimony as to whether plaintiff disregarded instructions and failed to install railings on the scaffolding before beginning work and Hopkins's self-contradiction about whether the railings would have protected plaintiff from his fall are only of concern for considering plaintiff's potential comparative negligence, an issue not relevant under Labor Law § 240(1) (seeConcepcion v. 333 Seventh LLC, 162 A.D.3d 493, 494, 75 N.Y.S.3d 183 [1st Dept. 2018] ). Even if there were evidence that adequate safety devices were readily available at the work site and that plaintiff knew he was expected to use them, it would not render plaintiff the sole cause of the accident, because the unsecured scaffold with unlevel, uneven, and unsecured floor planks initially caused him to lose his balance and fall (seeMora v. Wythe and Kent Realty LLC, 171 A.D.3d 426, 95 N.Y.S.3d 527 [1st Dept. 2019] ).
In opposition, defendant failed to raise an issue of fact as to whether plaintiff's conduct was the sole proximate cause of his injuries. Earlier on the day of the accident, plaintiff had seen other workers using the same ladder, which had been set up by another worker, and plaintiff's failure to secure the ladder was at most comparative negligence (seeConcepcion v. 333 Seventh LLC , 162 A.D.3d 493, 494, 75 N.Y.S.3d 183 [1st Dept. 2018] ; Nacewicz v. Roman Catholic Church of the Holy Cross , 105 A.D.3d 402, 403, 963 N.Y.S.2d 14 [1st Dept. 2013] ). "Plaintiff's failure to ask his coworkers to hold the ladder while he worked also did not constitute the sole proximate cause of the accident, since a coworker is not a safety device contemplated by the statute" ( Noor v. City of New York , 130 A.D.3d 536, 541, 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] [internal quotation marks omitted] ). Furthermore, defendant's argument that plaintiff should have used a metal ladder available on the site, rather than the fiberglass ladder, is unsupported by the record (seeJarzabek v. Schafer Mews Hous. Dev. Fund Corp. , 160 A.D.3d 412, 73 N.Y.S.3d 173 [1st Dept. 2018] ; Fanning , 106 A.D.3d at 485, 964 N.Y.S.2d 525 ).
Whether the ladder was in good working order is legally unavailing on summary judgment, because plaintiff established that the ladder did not offer adequate protection from falls, and he was not required to prove its defectiveness in order to satisfy his prima facie burden (Ping Lin v 100 Wall St. Prop. LLC, 193 A.D.3d at 651; Rodriguez v BSREP UA Heritage LLC, 181 A.D.3d 537 [1st Dept 2020]; Sacko at 547; Fletcher v Brookfield Properties, 145 A.D.3d 434 [1st Dept 2016]). Defendants' assertion that plaintiff caused his own injuries by leaning too far over does not refute that the ladder shifted and, at most, would establish comparative negligence, which is not a defense to liability under Labor Law § 240(1)(see Ladd v Thor 680 Madison Ave. LLC, 212 A.D.3d 107, 114 [1st Dept 2022]; Concepcion v 333 Seventh LLC, 162 A.D.3d 493, 494 [1st Dept 2018]; Fletcher v Brookfield Properties, 145 A.D.3d at 434; see also Jarzabek v Schafer Mews Hous. Dev. Fund Corp., 160 A.D.3d 412, 413 [1st Dept 2018]). Finally, the Court is unpersuaded that plaintiff provided inconsistent statements about the circumstances of the accident (Ping Lin v 100 Wall St. Prop. LLC, 193 A.D.3d at 652).
Defendant has failed to establish prima facie entitlement to summary judgment dismissing plaintiffs Labor Law § 240(1) claim, as its focus on plaintiff s job title and the moment of injury are not dispositive (see Prats, 100 N.Y.2d at 882). One month before plaintiffs accident, he disassembled the hot water heater to prepare for the installation of the sprinkler, and on the date of the accident, he was removing the heater pieces to make room for the new system, both of which constitute alteration (see Concepcion v 333 Seventh LLC, 162 A.D.3d 493, 493 [1st Dept 2018] [plaintiff's reconfiguring sprinkler system to comply with fire code, including cutting, removing, and relocating pipes, valves, and installing components, constituted alteration within meaning of section 240(1)]; Kharie v South Shore Record Mgt., Inc., 118 A.D.3d 955, 956 [2d Dept 2014] [dismantling free-standing shelves composed of component pieces attached in definite manner constituted alteration]; Wade v Atlantic Cooling Tower Servs., Inc., 56 A.D.3d 547, 549 [2d Dept 2008] ["plaintiff's dismantling of the sprinkler system constituted the alteration of the structure within the meaning of Labor Law § 240 (1)"]; see also Morales v City of New York, 245 A.D.2d 431 [2d Dept 1997] [removal of old video screen before installation of new screen constitutes alteration of auditorium structure]). Moreover, plaintiff's work was not "a separate phase easily distinguishable from other parts of the larger construction [or alteration] project" (Prats, 100 N.Y.
Here, Plaintiff established prima facie that the A-frame ladder he was utilizing failed to provide him proper protection under the circumstances through his testimony that the unsecured ladder moved when the Sawzall blade became jammed in the conduit he was cutting (see Wardv.Urban Horizons II Hous. Dev. Fund Corp., 128 A.D.3d 434 [1st Dept 2015]; see also Diming Wu v. 34 17th St. Project LLC, 200 A.D.3d 508 [1st Dept 2021]; Concepcion v. 333 Seventh LLC, 162 A.D.3d 493, 494 [1st Dept 2018] Johnson v. General Design & Dev., 225 A.D.2d 970 [3d Dept 1996]). "Whether the ladder moved or whether the plaintiffs fall was caused by [the Sawzall blade sticking] is immaterial, as the A-frame ladder was an inadequate safety device for the work plaintiff was performing" (Diming Wuv.34 17th St. Project LLC, supra at 509).
Concerning Delta, Port Authority and Vanderlane's liability under Labor Law §240[ 1 ], Plaintiff established a prima facie case that the A-frame ladder he was utilizing failed to provide him proper protection under the circumstances through his testimony the unsecured ladder moved to his right and caused him to fall (see Pierrakeas v 137 E. 38th St. LLC, VH A.D.3d 574 [1st Dept 2019][Where "the ladder tipped over as he sought to steady himself while descending it, plaintiffs testimony established prima facie that defendant failed to provide a safety device to insure that the ladder would remain upright while plaintiff used it to perform his statutorily covered work"]; Concepcion v 333 Seventh LLC, 162 A.D.3d 493, 494 [1st Dept 2018]["Partial summary judgment on the issue of liability was properly granted in favor of plaintiff. . . [where] [a]ccording to plaintiff, as he was tightening a bolt, the ladder moved and he fell to the floor"]; Orellano v. 29 E. 37th St. Realty Corp., 292 A.D.2d 289 [1st Dept 2002]; see also Rodriguez v BSREP UA Heritage LLC, 181 A.D.3d 537 [1st Dept 2020]; Fletcher v Brookfield Props., 145 A.D.3d 434 [1st Dept 2016]). This result is compelled as "[t]he failure to properly secure a ladder so as to hold it steady and erect during its use constitutes a violation of Labor Law §240[ 1 ]" (Dasilva v A. J. Contracting Co., 262 A.D.2d 214 citing Kijak v 330 Madison Ave. Corp., 251 A.D.2d 152 [1st Dept 1998]) and no further evidence of the defective nature of the ladder is required (see eg Pierrakeas v 137 E. 38th St. LLC, supra at 575; Fanning v Rockefeller Univ., 106 A.D.3d 484, 485, [1st Dept 2013]).
Even if plaintiff installed the duct incorrectly, his actions would constitute, at most, comparative negligence, which is not a defense to liability under section 240 (1) (see Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991] ["Negligence, if any, of the injured worker is of no consequence"]; SinchivIIWA 1290 III LLC, 184 A.D.3d 408, 409 [1st Dept 2020] [plaintiff s alleged comparative negligence in causing roof collapse by pulling on ceiling with hook while attempting to remove sprinkler head "amounts to comparative negligence, which is not a defense to a Labor Law § 240 (1) claim"]; Concepcion v 333 Seventh LLC, 162 A.D.3d 493, 494 [1st Dept 2018] ["any failure on plaintiffs part to ensure that his coworker had properly set up the ladder would, at most, constitute comparative negligence, a defense inapplicable to a Labor Law § 240 (1) cause of action"]). Additionally, plaintiffs striking the duct was not so irrational, unreasonable or unnecessary so as to constitute the sole proximate cause of his accident, given plaintiffs testimony that he asked for a duct lift and that his foreman told him that none were available (NYSCEF Doc No. 235, plaintiff tr at 92).
, 4 N.Y.3d 35, 39-40 [2004]). Labarbera's and plaintiff's conflicting testimony as to whether plaintiff disregarded instructions and failed to install railings on the scaffolding before beginning work and Hopkins's self-contradiction about whether the railings would have protected plaintiff from his fall are only of concern for considering plaintiff's potential comparative negligence, an issue not relevant under Labor Law § 240 (1) (see Concepcion v 333 Seventh LLC, 162 A.D.3d 493, 494 [1st Dept 2018]). Even if there were evidence that adequate safety devices were readily available at the work site and that plaintiff knew he was expected to use them, it would not render plaintiff the sole cause of the accident, because the unsecured scaffold with unlevel, uneven, and unsecured floor planks initially caused him to lose his balance and fall (see Mora v Wythe and Kent Realty LLC, 171 A.D.3d 426 [1st Dept 2019]).