Opinion
14643 Index No. 152989/14 595582/16, 595941/17 Case No. 2021-00915
11-18-2021
Timothy C. MULLINS, Plaintiff–Respondent, v. CENTER LINE STUDIOS, INC., et al., Defendants, New York Communications Center Associates, L.P., et al., Defendants–Appellants. New World Stages, LLC, Third–Party Plaintiff–Appellant, v. Murder for Two Limited Liability Company, Third–Party Defendant–Appellant. [And Another Action]
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants. Siegel & Coonerty LLP, New York (Steven Aripotch of counsel), for respondent.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants.
Siegel & Coonerty LLP, New York (Steven Aripotch of counsel), for respondent.
Webber, J.P., Kern, Gonza´lez, Mendez, Shulman, JJ.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered November 24, 2020, which, upon reargument, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendant New York Communications Center Associates, L.P. and defendant/third-party plaintiff New World Stages, LLC, unanimously affirmed, without costs.
Plaintiff made a prima facie showing that the wooden ladder he was using to help construct a theater set, which was mounted to the set wall and was required to be climbable, malfunctioned when the newly added top rung detached from the railing as he held onto it and leaned to the side (see Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ; Ortiz–Cruz v. Evers, 150 A.D.3d 622, 623, 56 N.Y.S.3d 71 [1st Dept. 2017] ).
In opposition, appellants failed to show "a plausible view of the evidence ... that there was no statutory violation, and that plaintiff's own acts or omissions were the sole cause of the accident" ( Blake, 1 N.Y.3d at 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). There is "no evidence that ... plaintiff had been instructed to utilize" only the A-frame ladders that his coworkers were already using "or to avoid using the ladder" from which he fell ( Beamon v. Agar Truck Sales, Inc., 24 A.D.3d 481, 483, 808 N.Y.S.2d 232 [2d Dept. 2005] ; see Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] ). Indeed, the testimony of plaintiff and his supervisor demonstrates that there were no other safety devices readily available (see Tuzzolino v. Consolidated Edison Co. of N.Y., 160 A.D.3d 568, 75 N.Y.S.3d 166 [1st Dept. 2018] ), and plaintiff's use of the ladder was consistent with his employer's instructions. Thus, any negligence on plaintiff's part cannot be found to be the sole proximate cause of his accident (see Cuentas v. Sephora USA, Inc., 102 A.D.3d 504, 505, 958 N.Y.S.2d 352 [1st Dept. 2013] ).