Opinion
8597 Index 159273/16
03-05-2019
Frank NIETO, Plaintiff–Appellant–Respondent, v. CLDN NY LLC, Defendant. CLDN NY LLC, Third–Party Plaintiff–Respondent–Appellant, v. ECG Retail Logistics, LLC, Third–Party Defendant–Respondent–Appellant.
Golomb & Longo, PLLC, New York (Frank A. Longo of counsel), for appellant-respondent. McAndrew, Conboy, & Prisco, LLP, Melville (Michael J. Prisco of counsel), for CLDN N.Y. LLC, respondent-appellant. Marshall Conway & Bradley, P.C., New York (Lauren R. Turkel of counsel), for ECG Retail Logistics, LLC, respondent-appellant.
Golomb & Longo, PLLC, New York (Frank A. Longo of counsel), for appellant-respondent.
McAndrew, Conboy, & Prisco, LLP, Melville (Michael J. Prisco of counsel), for CLDN N.Y. LLC, respondent-appellant.
Marshall Conway & Bradley, P.C., New York (Lauren R. Turkel of counsel), for ECG Retail Logistics, LLC, respondent-appellant.
Sweeny, J.P., Renwick, Gische, Kahn, Kern, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered July 23, 2018, which, insofar as appealed from, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, and denied the cross motions of defendant CLDN N.Y. LLC (CLDN) and of third-party defendant ECG Retail Logistics, LLC (ECG) for summary judgment dismissing the § 240(1) cause of action, unanimously modified, on the law, to grant plaintiff's motion, and otherwise affirmed, without costs.
Plaintiff, who fell from a ladder while installing light fixtures in CLDN's building, was forced to install a portion of the light by standing on display cases approximately 20 feet high, and then returning to the top of the ladder to finish that portion of the installation, which was located partially over the cases. While attempting to maneuver himself into position on the ladder, he lost his balance and fell. Whether the ladder shook prior to his fall or during that period in time when he was attempting to recover his balance is of no moment, since the ladder was an inadequate safety device for the work being performed (see Caceres v. Standard Realty Assoc., Inc., 131 A.D.3d 433, 15 N.Y.S.3d 338 [1st Dept. 2015], appeal dismissed 26 N.Y.3d 1021, 20 N.Y.S.3d 333, 41 N.E.3d 1149 [2015] ; Keenan v. Simon Prop. Group, Inc., 106 A.D.3d 586, 589, 966 N.Y.S.2d 378 [1st Dept. 2013] ). The claim of CLDN and ECG that plaintiff was the sole proximate cause of his accident is unpersuasive, since plaintiff's stance was necessary to perform the work (see Messina v. City of New York, 148 A.D.3d 493, 49 N.Y.S.3d 408 [1st Dept. 2017] ; Cuentas v. Sephora USA, Inc., 102 A.D.3d 504, 958 N.Y.S.2d 352 [1st Dept. 2013] ). It also does not avail defendants that the ladder was not defective, since it is undisputed that the ladder was unsecured, and the worker who had been holding the ladder walked away only minutes before the accident (see Howard v. Turner Constr. Co., 134 A.D.3d 523, 21 N.Y.S.3d 251 [1st Dept. 2015] ).
We have considered the remaining contentions and find them unavailing.