Opinion
2012-11-14
Ismael NUNEZ, respondent, v. CITY OF NEW YORK, et al., appellants.
Cozen O'Connor, New York, N.Y. (Paul Zola, Kenneth G. Schwarz, and Vincent Pozzuto of counsel), for appellants. Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
Cozen O'Connor, New York, N.Y. (Paul Zola, Kenneth G. Schwarz, and Vincent Pozzuto of counsel), for appellants. Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated November 9, 2001, as granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) is denied.
The plaintiff allegedly sustained personal injuries when he fell from a ladder while working on an asbestos-removal project in a New York City public school. The Supreme Court erred in granting the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). “To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries” ( Tama v. Gargiulo Bros., Inc., 61 A.D.3d 958, 960, 878 N.Y.S.2d 128;see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757). “Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)” ( Treu v. Cappelletti, 71 A.D.3d 994, 997, 897 N.Y.S.2d 199).
In support of his motion for summary judgment, the plaintiff submitted a copy of the transcript of his testimony at a hearing pursuant to General Municipal Law § 50–h. At that hearing he testified that the 10–foot A-frame ladder from which he fell was in an open and locked position at the time of the accident, and that it was positioned on an uneven floor composed of broken concrete and sand or dirt. He testified that he was standing near the top of the ladder and was leaning forward to apply a plastic covering to the wall when the ladder suddenly moved and he fell forward with the ladder to the floor. However, the plaintiff admitted that he himself had placed the ladder, and that he had no problems using it prior to the accident. The plaintiff also submitted an affidavit from a co-worker who also averred that the ladder was in an open position at the time of the accident. However, the plaintiff also submitted an incident report and unsworn statements of the co-worker and the plaintiff's supervisor in which they indicated that at the time of the accident the ladder was in a closed position propped up against the wall. In light of these factually irreconcilable accounts, the plaintiff failed to eliminate triable issues of fact as to whether the ladder provided proper protection, and whether the ladder's failure to provide proper protection was a proximate cause of the injuries ( see Reyes v. Khan, 90 A.D.3d 734, 934 N.Y.S.2d 328;Delahaye v. Saint Anns School, 40 A.D.3d 679, 682, 836 N.Y.S.2d 233;Seepersaud v. City of New York, 38 A.D.3d 753, 754, 835 N.Y.S.2d 199;Taglioni v. Harbor Cove Assoc., 308 A.D.2d 441, 442, 764 N.Y.S.2d 192;Tersigni v. City of New York, 300 A.D.2d 389, 390, 752 N.Y.S.2d 74;Chan v. Bed Bath & Beyond, 284 A.D.2d 290, 726 N.Y.S.2d 127;Boguszewski v. Solo Salon & Spa, 309 A.D.2d 777, 778, 765 N.Y.S.2d 804;Costello v. Hapco Realty, 305 A.D.2d 445, 446, 761 N.Y.S.2d 79).
Since the plaintiff did not establish his prima facie entitlement to judgment as a matter of law, the motion should have been denied without regard to the sufficiency of the defendants' opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).