Opinion
2012-11-15
Jose G. LIZAMA, Plaintiff–Respondent, v. 1801 UNIVERSITY ASSOCIATES, LLC, et al., Defendants–Appellants.
The Law Offices of Edward M. Eustace, White Plains (Heath A. Bender of counsel), for appellants. Jacob Oresky & Associates, PLLC, Bronx (Rhonda P. Katz of counsel), for respondent.
The Law Offices of Edward M. Eustace, White Plains (Heath A. Bender of counsel), for appellants. Jacob Oresky & Associates, PLLC, Bronx (Rhonda P. Katz of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, MOSKOWITZ, FREEDMAN, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered December 23, 2011, which granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff submitted evidence showing that while standing on the fourth rung of a five-rung A-frame ladder, and using both hands to move a sander back and forth on the walls, he was injured when the ladder suddenly shifted, a “crack” was heard and the ladder collapsed, causing him to fall to the floor. Plaintiff testified that he had examined the ladder prior to using it and found it to be functional. However, immediately following the accident, he noted that a stabilizing bracket on the side of the ladder was broken. The ladder was the lone piece of safety equipmentavailable to plaintiff for use in sanding the upper part of the walls, plaintiff's foreman was not at work on the day of the accident and no definitive instructions were given to plaintiff on how to perform the sanding work. Under these circumstances, plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his claim under Labor Law § 240(1) ( see Carchipulla v. 6661 Broadway Partners, LLC, 95 A.D.3d 573, 945 N.Y.S.2d 4 [1st Dept.2012];Picano v. Rockefeller Ctr. N., Inc., 68 A.D.3d 425, 889 N.Y.S.2d 579 [1st Dept.2009] ).
In opposition, defendants failed to raise a triable issue of fact. Contrary to defendants' contention that plaintiff was the sole proximate cause of his accident, the record shows that the ladder was inadequate for the nature of the work performed and the gravity-related risks involved ( see Lipari v. AT Spring, LLC, 92 A.D.3d 502, 938 N.Y.S.2d 303 [1st Dept.2012] ). Moreover, defendants did not show that another safety device was available, but went unused, that plaintiff failed to heed instructions on how to perform his assigned sanding task, or that the cause of plaintiff's injury was unrelated to the ladder's shifting and ultimate collapse ( see Gallagher v. New York Post, 14 N.Y.3d 83, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010];Lipari, 92 A.D.3d at 504, 938 N.Y.S.2d 303;Romanczuk v. Metropolitan Ins. & Annuity Co., 72 A.D.3d 592, 899 N.Y.S.2d 228 [1st Dept.2010] ).