Opinion
# 2012-041-098 Claim No. 120291 Motion No. M-82010 Cross-Motion No. CM-82112
12-21-2012
SCOTT A. LAFORGE and DAWNMARIE LAFORGE v. THE STATE OF NEW YORK
Synopsis
Defendant's motion for summary judgment dismissing claim is denied and claimants' cross-motion for partial summary judgment as to defendant's Labor Law § 240 (1) liability is granted where claimant was injured when the base of the ladder he was descending slipped on icy roof surface and proof showed that Labor Law § 240 (1) violation was a proximate cause of the accident. Case information
UID: 2012-041-098 Claimant(s): SCOTT A. LAFORGE and DAWNMARIE LAFORGE Claimant short name: LAFORGE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120291 Motion number(s): M-82010 Cross-motion number(s): CM-82112 Judge: FRANK P. MILANO DREYER BOYAJIAN LLP Claimant's attorney: By: Donald R. Boyajian, Esq. James R. Peluso, Esq. ROEMER WALLENS GOLD & MINEAUX, LLP Defendant's attorney: By: Matthew J. Kelly, Esq. Third-party defendant's attorney: Signature date: December 21, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves pursuant to CPLR 3212 for summary judgment on the ground that Scott A. LaForge (claimant) was "the sole proximate cause of his accident" in this claim alleging Labor Law violations by defendant. Claimants oppose defendant's motion and cross-move for partial summary judgment on their Labor Law § 240 (1) cause of action.
The claim alleges that claimant was employed by W.B. Roofing & Sheetmetal, Inc. (WB Roofing) to perform work on the roof of a building located at One Enterprise Drive, Albany, New York pursuant to a written construction contract entered into between the New York State Assembly and WB Roofing.
According to the claim, the defendant State of New York, through the New York State Assembly, "was acting as the general contractor, and/or contract manager and/or beneficial owner and/or agent thereof for certain construction, alteration and/or repair work performed at the premises located at One Enterprise Drive, Albany, New York" and "had authority to control and direct the work and worksite."
The claim further alleges that on, October 26, 2009 at approximately 7:25 a.m., while working on the second story roof of the building, claimant "attempted to descend the roof via a ladder elevated approximately 10 feet above a lower first story roof; claimant was climbing down the ladder when it slipped, kicked out, gave way and collapsed underneath him; and claimant fell from the ladder onto the first story roof below." As a result of his fall, claimant allegedly suffered severe and disabling physical injuries and damages and his wife, Dawnmarie LaForge, was allegedly deprived of his services, society, companionship and consortium.
The claim states that defendant is responsible for claimant's injuries by "virtue of the negligence of the employees, agents or servants of the State of New York, and by virtue of statutory responsibility on the part of the State of New York pursuant to the Labor Law." According to the claim, defendant violated Labor Law §§ 240 (1), 241 (6) and 200.
The standard for review of these motions is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
Defendant has offered no basis to support its summary judgment motion regarding claimants' causes of action based upon Labor Law §§ 241 (6) and 200 and/or common-law negligence other than in seeking summary judgment on claimant's Labor Law § 240 (1) cause of action, defendant asserts that claimant "was the sole proximate cause of his accident."
Defendant's proof on the motion is devoted exclusively to claimant's Labor Law § 240 (1) cause of action. The statute provides as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
In Rocovich v Consolidated Edison Co. (78 NY2d 509, 513 [1991]), the Court of Appeals explained that:
"The legislative purpose behind this enactment is to protect 'workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' (1969 NY Legis Ann, at 407), instead of on workers, who 'are scarcely in a position to protect themselves from accident' (Koenig v Patrick Constr. Co., 298 NY 313, 318)."
Courts are required to "liberally construe the statute to effect its purpose of protecting workers" (Hodges v Boland's Excavating & Topsoil, Inc., 24 AD3d 1089, 1091 [3d Dept 2005] lv denied 6 NY3d 710 [2006]).
The Court of Appeals recently reminded, in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521, 524 [2012]), that:
"Labor Law § 240 (1), one of the most frequent sources of litigation in the New York courts, provides rights to certain workers going well beyond the common law. As we have long held, it imposes liability even on contractors and owners who had nothing to do with the plaintiff's accident; and where a violation of the statute has caused injury, any fault by the plaintiff contributing to that injury is irrelevant"
Despite the formidable protections offered workers by Labor Law § 240 (1), "a defendant may establish its entitlement to summary judgment by showing that no statutory violation has occurred and that the sole proximate cause of an accident was the plaintiff's own actions" (Deshields v Carey, 69 AD3d 1191, 1192 [3d Dept 2010]).
The Court finds that defendant, minimally, has met its initial burden and made a prima facie showing of entitlement to judgment dismissing claimant's Labor Law § 240 (1) cause of action as a matter of law by offering proof that "[t]he likely cause of the accident here was the combination of an improperly secured vise grip system [attaching the top of the 24' ladder to the upper roof] and the slippery surface at the base of the ladder" (para 12 of the affidavit of defendant's liability expert John M. Tomich) and that if claimant was "the person who failed to properly secure the ladder to ensure its safe operation . . . he would be the sole proximate cause of the accident" (para 14 of the affidavit of Tomich; see para 5 of the affidavit of WB Roofing co-worker Evan Durfee).
Even though defendant acknowledges that on a motion for summary judgment, a Labor Law § 240 (1) violation, and a claimant's prima facie entitlement to summary judgment, is established where the ladder "collapses, slips or otherwise fails to perform its function of supporting" the worker (Squires v Marini Bldrs., 293 AD2d 808, 809 [3d Dept 2002], lv denied 99 NY2d 502 [2002], quoting Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 854 [3d Dept 1995]), defendant relies primarily upon two cases in arguing that claimant's 240 (1) cause of action should be dismissed as a matter of law because claimant's own actions were the sole proximate cause of the accident.
In Georgia v Urbanski (84 AD3d 1569 [3d Dept 2011]), the plaintiff "used a ladder on ice outside of the excavated foundation while installing joists and lumber, and was injured when the ladder 'kicked out' from under him as he reached over to place a joist" (Georgia, 84 AD2d at 1569). The lower court denied plaintiff partial summary judgment as to defendant's liability pursuant to Labor Law § 240 (1), finding that questions of fact existed as to whether plaintiff failed to use proper safety equipment and whether plaintiff's own actions constituted the sole proximate cause of his injuries. The Georgia lower court was affirmed at 1569-1570:
"[S]harp factual disputes exist regarding plaintiff's placement and use of the ladder on an icy surface outside of the foundation, but he readily admitted that the decision to do so was his alone. While a plaintiff's contributory negligence does not relieve defendants of liability under Labor Law § 240 (1) . . ., nonparty witnesses testified that no work was to be performed outside of the foundation. Rather, plaintiff's employer expected workers to use ladders it had placed inside the foundation, and the record is devoid of evidence that ice was present or that ladders were improperly placed therein. Indeed, plaintiff was directed to join other workers inside the foundation and was observed to do so, although he later returned to the outside of the foundation, where the accident occurred.
In short, the employer produced evidence that the ladders constituted adequate safety devices within the intended work area and that plaintiff was injured only because he unilaterally chose to use a ladder outside the proper work area despite instruction to work inside the foundation."
In Meade v Rock-McGraw, Inc. (307 AD2d 156 [1st Dept 2003]), the second case relied upon by defendant,:
"[Plaintiff] was injured while he was replacing ceiling tiles in a hallway closet [in a building] undergoing renovation. In attempting to replace three missing tiles in a hallway closet . . . , he determined that the six-foot ladder he had been using to replace the tiles was too big to use inside the closet and located a five-foot, wooden A-frame ladder, which he described as being in good working order.
Plaintiff . . . positioned the ladder against the closet wall in the closed position at a slight angle and checked its stability. In this position, the top of the ladder was approximately three feet from the ceiling. Plaintiff climbed up to the third step and took both hands off the ladder to begin his work on the ceiling when he felt the ladder slide out from under him" (307 AD2d at 157-158).
The Meade plaintiff's Labor Law § 240 (1) summary judgment motion was denied by the lower court, and the denial was affirmed, primarily because:
"[D]efendants have made a showing, sufficient to defeat summary judgment, that plaintiff's own conduct was the sole proximate cause of his injury . . . Plaintiff did not speak to his supervisor before setting up the ladder in the closet. It was he who chose to place the ladder against the wall in a closed position, an improper use of the device" (307 AD2d at 160).
Defendant also offers proof, through the deposition testimony of claimant's foreman Kevin Germain (p 38) and co-worker Michael Warenda (pp 14, 47), that claimant disregarded Germain's instruction not to descend the ladder until the sun melted the morning frost and, citing Cahill v Triborough Bridge & Tunnel Auth. (4 NY3d 35, 39 [2004]), suggests that claimant's alleged recalcitrance in attempting to descend the ladder was the sole proximate cause of the accident. Defendant adds that claimant had no need to descend the ladder because a lift operator was available at the work site to deliver necessary tools or equipment from the ground to the roof.
Claimant not only opposes defendant's motion for summary judgment but also cross-moves for partial summary judgment as to claimant's Labor Law § 240 (1) cause of action and requests an inquest as to damages.
Defendant acknowledges a worker's prima facie entitlement to summary judgment where the ladder "collapses, slips or otherwise fails to perform its function of supporting" the worker (Beesimer, 216 AD2d at 854) but asserts that claimant's actions are the sole proximate cause of the accident as a matter of law. Claimant counters that the failure of the ladder to support claimant was a proximate cause of the accident as a matter of law, rendering defendant liable pursuant to Labor Law § 240 (1).
The WB Roofing foreman, and claimant's supervisor, Germain, testified at deposition that the work took place during September and October of 2009. Germain considered claimant a "good employee" and testified that "[a]nything that we wanted him to do, Scott would never hesitate to do it." Germain explained that the manner of securing a ladder to a roof was mandated by WB Roofing and that Germain "was told that's the way it was to be done when I came to WB Roofing." WB Roofing "had a specific way they wanted the ladder set up. And when you got up to tie them off, take what they consider a set of crimps on the one side of the ladder, tie a rope to the one crimp, around the rung of the ladder, over to another crimp on the other side." Germain explained that the "crimp" was "a vice grip type." The vice grips would then be attached to the metal flashing on the upper roof edge. Germain testified that a member of the crew would secure the ladder to the upper roof each morning and that usually either claimant or "Ronny" (now deceased) would set up and secure the ladder.
Germain does not know whether claimant or "Ronny" placed and secured the 24' ladder on the morning of the accident. He recalled that there was a "[r]eal heavy frost" on the morning of the accident and Germain "talked [with the crew] about before we went up there, was basically staying on the inside of the roof once we got up there until the sun broke and got some of the frost and dew off the edge so you didn't slip." Germain explained that it "was slippery. . . I was one of the last ones up. I made sure I foot the bottom of the ladder properly, kept my weight against the ladder just in case something did happen."
Germain believes that two vice grips were used to secure the top of the 24' ladder to the upper roof on the morning of the accident and "he didn't have a problem going up it." Germain also recounted that "[s]ometimes we were putting the ladder behind [a silver HVAC unit affixed to the lower roof] to make sure that it wouldn't kick out" but workers sometimes "walked into the unit" upon descending the 24' ladder "because it was right at the base of the ladder . . . so that's when we moved it [the 24' ladder] over."
Germain testified that workers would "usually tell me if they got to go do something or, say, if they had to go down and go to the bathroom or something, but you still occasionally had that one guy that would just go do what he wanted to do." He instructed the crew to inform him before they would go down the ladder but does not "remember telling them not to go back down, no."
Germain did not see claimant fall but saw, after the accident, that neither of the vice grips were "in place" but both were still in working order and the rope was not torn. Further, he acknowledged that a torch was available on-site to melt the frost on the roof.
Claimant's deposition testimony reveals that he arrived at the work site at approximately 7:00 a.m. on October 26, 2009. The weather was clear and cold and the temperature was below freezing. Claimant stated that during the course of the project, a 32' ladder was used by the workers to access the lower roof and a 24' ladder was used to ascend to the main upper roof. The 24' upper roof ladder was placed and taken down each day during the project, using the vise grip and rope method described by Germain. Different members of the six-man work crew would secure the 24' ladder each day between early September, when the job began, and the day of the accident. Claimant was "fuzzy about who did it" on the day he was injured. Claimant testified that "I strongly believe I did not" secure the 24' ladder to the upper roof on the morning of the accident.
Claimant recalled that it was "a little slippery" on the ladder itself as he ascended the 24' ladder that morning, "because of the morning precipitation or dew . . . or frost or whatever it was." The 24' ladder did not move as he ascended and it "felt like any other time I went up the ladder." Claimant did not notice whether the "clamp" at the top of the ladder had been secured as he went up the ladder.
After working for about 20-25 minutes, claimant realized he needed a "replacement drill." Claimant had no "method of communication with the people down on the bottom," though the lift operator was available to send a replacement drill up if "the foreman asked him to." Claimant testified that he "didn't think to ask the foreman for another tool." Claimant said nothing to his fellow workers as he approached the 24' ladder to descend and get a replacement drill.
After proceeding "down [a] couple" of rungs on the ladder, "[i]t started moving" and claimant "held on ... [a]s the ladder went down." Claimant recalled that the "ladder kicked out at the foot part, slipped on the foot and went down that way. I went with a lot of impact face down . . . onto the lower roof deck." The ladder continued to fall onto "the foreman's truck . . . parked near the lower roof."
Claimant testified that he is "not certain" as to whether the 24' ladder had been clamped that day. He recalled that the lower roof where the ladder bottom was placed that morning was a "little slippery." The bottom of the 24' ladder was not tied off or secured in any way, as far as claimant knew, on the day of the accident or on any previous day at the job. Claimant had no knowledge of any discussions as to where the 24' ladder should have been placed.
Claimant's co-worker Michael Warenda (Warenda), who witnessed the accident, was also deposed. Warenda "can't remember who set them up [the ladders] that day. . . I might have been there helping set them up. If I did, I know I mentioned the ice on the roof. But bringing the torch back down the ladder was more dangerous than anything else. So I believe Kevin [Germain] agreed no one goes down the ladder until we get ready for break, by then everything will be melted away."
Warenda recalled that "[d]ifferent people would set up the ladders," including himself, but he doesn't think claimant "ever set it up." After claimant fell, Warenda had to use the blow torch to "thaw the roof out so the rescue workers could get up on it. It was extremely slippery." Warenda said the "lower roof . . [t]he white TPO roof" is "highly slippery when any frost, water, ice, any of that gets on it."
Warenda testified that he had no difficulty ascending the 24' ladder to the upper roof the morning of the accident. Warenda testified that the 24' ladder "was definitely clamped" on the morning claimant fell. He observed nothing unusual about the way the 24' ladder was clamped before the accident occurred and testified that the manner in which the 24' ladder was clamped that morning was "definitely suitable."
Minutes before claimant's descent and accident, and approximately 20 minutes after first climbing the ladder to the upper roof, Warenda descended the 24' ladder because he "forgot something." Warenda told Germain he was going down the 24' ladder and Germain "didn't say nothing." Warenda testified that he was never instructed not to personally retrieve a tool from the ground if he needed one and said that it was common practice for WB Roofing workers to leave the roof and obtain a needed tool. He made it down safely without difficulty because "I'm very cautious. I knew it was on a slippery surface."
Once on the ground, Warenda "grabbed whatever I was grabbing out of my car, I turned around and looked, Scotty was coming down the ladder and I watched it all go. He just grabbed it like a cat and rode it down." He saw that claimant was "probably two, three steps down [the ladder] and then the "whole bottom just slid right out and took him with it." Warenda saw the ladder "bottom slid out right off the edge of the roof."
After claimant was removed by emergency personnel, the crew returned to work using the same 24' ladder. Warenda testified that we "set it up the exact same way, used clamps, rope, clamped it off again, only this time we thawed out underneath where the ladder sat." Warenda said that there had been prior occasions when the blow torch had been used to thaw the roof where the 24' ladder was set up and that on "[m]ost occasions we do that."
Warenda said he "might have been one of the people setting the ladder up. Because I vaguely remember saying [to Germain] that the roof was slippery and we need to melt it, we can't set a ladder on that." After the accident, the 24' ladder was secured at the bottom up against the "vent stack" [the silver HVAC unit] on the lower roof so "it couldn't slide out."
In Ball v Cascade Tissue Group-N.Y., Inc. (36 AD3d 1187, 1188 [3d Dept 2007]), the plaintiff was injured when he fell from an unsecured eight-foot stepladder while installing steel tubing along a basement ceiling at a paper mill owned by defendant. The Ball court, in reversing the trial court's denial of plaintiff's summary judgment motion, followed well-settled law providing that:
"Where, as here, the worker has been provided with a safety device, whether the device afforded proper protection is ordinarily a question of fact to be resolved at trial . . . However, where the uncontroverted evidence establishes that the safety device collapsed, slipped or otherwise failed to support him or her, the plaintiff demonstrates a prima facie entitlement to partial summary judgment under Labor Law § 240 (1)."
The parties agree that claimant has demonstrated a prima facie case of entitlement to partial summary judgment under Labor Law § 240 (1). The affidavit of defendant's attorney explicitly concedes that claimant "was descending a ladder when it slipped out from beneath him, causing him to fall." Defendant has presented no evidence, and does not argue, that the 24' ladder was "adequate and properly placed" (Dowling v McCloskey Community Servs. Corp., 45 AD3d 1232, 1233 [3d Dept 2007]).
Accordingly, the dispositive issue is whether defendant has presented sufficient evidence to show that a triable issue of fact exists as to whether claimant's "conduct was the sole proximate cause of his injuries" (Dowling, 45 AD3d at 1233; see Georgia, 84 AD3d at 1569; Ball, 36 AD3d at 1189).
Defendant has failed to do so. The cases relied upon by defendant are distinguishable. Recall that in Meade, "[p]laintiff did not speak to his supervisor before setting up the ladder in the closet. It was he who chose to place the ladder against the wall in a closed position, an improper use of the device" (307 AD2d at 160). Similarly, in Georgia, "the employer produced evidence that the ladders constituted adequate safety devices within the intended work area and that plaintiff was injured only because he unilaterally chose to use a ladder outside the proper work area despite instruction to work inside the foundation" (Georgia, 84 AD2d at 1570). Defendant also cites Robinson v East Med. Ctr., LP (6 NY3d 550, 555 [2006]) which likewise found that "[p]laintiff's own negligent actions--choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder's top cap in order to reach the work--were, as a matter of law, the sole proximate cause of his injuries."
Unlike the cases relied upon by defendant, claimant Scott LaForge did not choose the manner of securing the 24' ladder to the upper roof. Rather, the use of the vise grip (clamp) and rope system was mandated by his employer, WB Roofing. Similarly, claimant did not choose where to place the 24' ladder. The decision to place the ladder base atop the ice covering the rubber roof, and away from the HVAC unit which could have secured the ladder bottom, was made by the foreman, Germain. The choice not to thaw the ice on the rubber roof with the available blow torch, a practice previously employed, or to otherwise secure the bottom of the ladder, was also made by Germain.
Further, defendant has failed to provide sufficient proof to raise a triable issue of fact as to whether claimant was the WB Roofing employee who set up the 24' ladder on the day of the accident. Defendant's only proof on this point is the single sentence in the affidavit of WB Roofing employee Evan Durfee that "Scottie was always the one crew member who tied down the ladder." Significantly, Durfee does not state that he observed claimant place, and attempt to secure, the 24' ladder on the morning of the accident. Nor, for that matter, does anyone else among the several workers on the job, make such a statement. Additionally, foreman Germain and claimant's co-workers were present when the 24' ladder was set up and Germain personally stabilized the bottom of the 24' ladder on the morning of the accident as claimant and his co-workers ascended the ladder to the upper roof.
No proof was offered that any of the WB Roofing employees observed anything different or improper regarding the manner in which the 24' ladder was secured to the upper roof. Even assuming that claimant had set up the vise grip (clamp) and rope system on the 24' ladder on the morning of the accident, no proof has been submitted to show that he did so improperly, other than speculation that because the ladder fell, something must have been done improperly.
Nor can defendant avoid liability by attempting to attribute sole proximate causation of the accident to claimant's purported refusal to follow foreman Germain's instruction not to descend the 24' ladder until the sun melted the ice on the roof. Defendant cites Cahill v Triborough Bridge & Tunnel Auth. (4 NY3d 35 [2004]) in support of this proposition. The facts in Cahill, however, differ drastically from those presented on these motions:
"The word 'recalcitrant' fits plaintiff in this case well. He received specific instructions to use a safety line while climbing, and chose to disregard those instructions. He was not the less recalcitrant because there was a lapse of weeks between the instructions and his disobedience of them. The controlling question, however, is not whether plaintiff was 'recalcitrant,' but whether a jury could have found that his own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of his accident . . . Here, a jury could have found that plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured" (Cahill, 4 NY3d at 39-40).
Here, Germain testified that "we talked about before we got up there, was basically staying on the inside of the roof once we got up there until the sun broke and got some of the frost and dew off the edge so you didn't slip." Germain's concern was that a worker might slip on the icy edge of the upper roof "once we got up there." Germain admitted that he does not "remember telling them not to go back down, no." The testimony of Warenda, Germain and claimant makes clear that there was no specific order issued prohibiting the workers from descending the 24' ladder that morning (and that minutes before his fall, claimant's co-worker Warenda descended the ladder without objection by Germain) and further makes clear that claimant's purported failure to "adhere to his foreman's instructions" (Kelly affidavit para 42) was not the sole proximate cause of the accident.
Finally, claimant's failure to request the lift operator to deliver a replacement drill to the upper main roof does not raise an issue of fact as to whether claimant was the sole proximate cause of the accident. Warenda's testimony shows that WB Roofing, whether through Germain or otherwise, never instructed its workers not to personally retrieve a tool from the ground if needed and further shows that it was common practice for WB Roofing workers to leave the roof and personally retrieve a needed tool.
Defendant's various contentions regarding claimant's actions amount, at most, to comparative negligence, which is insufficient to avoid Labor Law § 240 (1) liability (see Williams v Town of Pittstown, 100 AD3d 1250 [3d Dept 2012]; Pearl v Sam Greco Constr., Inc., 31 AD3d 996, 997 [3d Dept 2006], lv denied 11 NY3d 710 [2008]; Gilbert v Albany Med. Ctr., 9 AD3d 643, 644-645 [3d Dept 2004]).
Defendant has failed to provide sufficient evidence to raise an issue of fact that claimant either placed or chose the placement of the 24' ladder, that claimant either secured or chose the manner of securing the 24' ladder or, even assuming claimant secured the top of the 24' ladder to the upper roof on the morning of the accident, that claimant's actions caused the ladder to slip and fall. Nor has defendant offered sufficient evidence to raise an issue of fact that claimant disregarded any specific instruction not to descend the 24' ladder on the morning he was injured.
Finally, the Court finds, as a matter of law, that the slippery surface of the lower roof on the morning of October 26, 2009, together with the failure to adequately secure the bottom of the 24' ladder, was a proximate cause of the bottom of the 24' ladder slipping out as claimant descended the ladder. "As this statutory violation [Labor Law § 240 (1)] was a proximate cause of [claimant's] fall, [claimant's] own actions cannot be the sole proximate cause of his fall" (Morin v Machnick Bldrs., 4 AD3d 668, 670 [3d Dept 2004]).
For all of the foregoing reasons, defendant has failed to raise a triable issue of fact as to whether claimant's conduct was the sole proximate cause of the accident. Defendant's Labor Law § 240 (1) liability is established.
Defendant's motion for summary judgment dismissing the claim is denied. Claimants' cross-motion for partial summary judgment on their Labor Law § 240 (1) cause of action is granted.
December 21, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, filed July 26, 2012;
2. Affidavit of Matthew J. Kelly, sworn to July 23, 2012, and annexed exhibits;
3. Affidavit of John Tomich, sworn to July 20, 2012;
4. Affidavit of Evan Durfee, sworn to June 16, 2012;
5. Notice of Cross-Motion, filed August 31, 2012;
6. Affidavit of James R. Peluso, sworn to August 31, 2012, and annexed exhibits;
7. Affidavit of Ronald A. Bova, sworn to August 31, 2012, and annexed exhibits;
8. Reply Affidavit of Matthew J. Kelly, sworn to September 25, 2012, and annexed exhibits
9. Reply Affidavit of James R. Peluso, sworn to October 9, 2012, and annexed exhibit.