Opinion
12412 Index No. 157722/15 595840/15 Case No. 2020-1090
11-17-2020
Madimaro SACKO, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY et al., Defendants–Appellants. [And a Third–Party Action]
O'Connor Redd Orlando LLP, Port Chester (Joseph A. Orlando of counsel), for appellants. Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Gregory C. McMahon of counsel), for respondent.
O'Connor Redd Orlando LLP, Port Chester (Joseph A. Orlando of counsel), for appellants.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Gregory C. McMahon of counsel), for respondent.
Manzanet–Daniels, J.P., Singh, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered November 29, 2019, which, inter alia, granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1). Plaintiff's testimony established that defendants failed to provide a safety device that would ensure that the ladder he was instructed to use would remain upright while he performed his statutorily covered work, and that he fell off of the ladder when the ladder suddenly shifted and collapsed (see Rodriguez v. BSREP UA Heritage LLC, 181 A.D.3d 537, 538, 122 N.Y.S.3d 10 [1st Dept. 2020] ; Pierrakeas v. 137 E. 38th St. LLC, 177 A.D.3d 574, 574, 114 N.Y.S.3d 318 [1st Dept. 2019] ). Plaintiff was not required to show that the ladder was defective (see Rodriguez at 538, 122 N.Y.S.3d 10 ).
In opposition, defendants failed to raise an issue of fact as to whether plaintiff's conduct was the sole proximate cause of his injuries. Defendants presented no evidence to show that appropriate safety equipment was available to plaintiff, and that plaintiff then unreasonably chose not to use it (see Pierrakeas at 575, 114 N.Y.S.3d 318 ; Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402, 403, 963 N.Y.S.2d 14 [1st Dept. 2013] ; compare Egan v. Monadnock Constr., Inc., 43 A.D.3d 692, 693–694, 841 N.Y.S.2d 547 [1st Dept. 2007], lv denied 10 N.Y.3d 706, 857 N.Y.S.2d 39, 886 N.E.2d 804 [2008] ). In any event, plaintiff's alleged failure to fully secure the ladder before he used it was, at most, comparative negligence, and is not sufficient to defeat plaintiff's motion (see Rodriguez at 538, 122 N.Y.S.3d 10 ; Orellano v. 29 E. 37th St. Realty Corp., 292 A.D.2d 289, 291, 740 N.Y.S.2d 16 [1st Dept. 2002] ).
Although plaintiff was the sole witness to the accident, summary judgment may still be awarded based on plaintiff's unrefuted testimony (see e.g. Gonzalez v. 1225 Ogden Deli Grocery Corp., 158 A.D.3d 582, 584, 71 N.Y.S.3d 473 [1st Dept. 2018] ; Marrero v. 2075 Holding Co. LLC, 106 A.D.3d 408, 409–410, 964 N.Y.S.2d 144 [1st Dept. 2013] ). Any alleged discrepancies in plaintiff's testimony about his subsequent job search and what he was holding when the ladder fell are insufficient to create a question of fact where it is undisputed that the ladder collapsed and caused his injuries.
As the court properly granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim, we need not reach the issues raised on appeal concerning plaintiff's Labor Law § 241(6) claim (see Rodriguez, 181 A.D.3d at 538, 122 N.Y.S.3d 10 ; Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 12, 917 N.Y.S.2d 130 [1st Dept. 2011] ).