Opinion
July 10, 1967
Appeal by plaintiff from a judgment of the Supreme Court, entered upon a verdict of no cause of action. Plaintiff, an employee of one Ebert, who was then engaged in performing certain light construction work for defendant, was injured when he fell from a defective ladder; and seeks to recover for his resulting personal injuries, alleging a violation of section 240 Lab. of the Labor Law. Plaintiff testified that, in the presence of his employer and of defendant, he "mentioned that [he] needed a ladder", that defendant said, "Wait a minute; I'll get you a ladder"; and went and returned with one and gave it to the plaintiff, saying, "Here's a ladder." We need not consider the evidence contradictory of this testimony inasmuch as we have concluded that plaintiff demonstrated no employment or direction by defendant, within the meaning of section 240, and hence failed to prove a prima facie case. (See Mendes v. Caristo Constr. Corp., 5 A.D.2d 268, affd. 6 N.Y.2d 729; Deso v. Albany Ladder Co., 26 A.D.2d 182.) We have not overlooked the reprehensible conduct of defense counsel which was such as would have required a new trial had this record disclosed an issue of fact. Judgment affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.