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Arnold v. Baldwin Real Estate Corp.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 5, 2009

TONY ARNOLD, PLAINTIFF-RESPONDENT,
v.
BALDWIN REAL ESTATE CORPORATION AND GENESEE WEST ASSOCIATES, LP, DEFENDANTS-APPELLANTS.

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered April 15, 2008 in a personal injury action. The order denied defendants' motion for summary judgment and granted plaintiff's cross motion for partial summary judgment on liability.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND GREEN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Plaintiff commenced this Labor Law action seeking damages for injuries he sustained when he fell approximately 11 feet from a ladder to the ground while painting a commercial building. Supreme Court properly granted plaintiff's cross motion for partial summary judgment on liability with respect to the Labor Law § 240 (1) claim. "Plaintiff met his initial burden by submitting his uncontroverted deposition testimony in which he testified that [the] ladder shifted, thus establishing as a matter of law that it was not so placed . . . as to give proper protection to plaintiff" (Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135, 1136 [internal quotation marks omitted]; see Whalen v ExxonMobil Oil Corp., 50 AD3d 1553), and he further established that defendants' violation of Labor Law § 240 (1) was a proximate cause of his injuries (see Rudnik v Brogor Realty Corp., 45 AD3d 828, 829). Thus, it cannot be said that plaintiff was "solely to blame for [them]" (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; see Woods v Design Ctr., LLC, 42 AD3d 876, 877). Defendants failed to raise a triable issue of fact in opposition to the cross motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The evidence submitted by defendants establishing "that the ladder was structurally sound and not defective is not relevant on the issue of whether it was properly placed" (Whalen, 50 AD3d at 1554 [internal quotation marks omitted]).

20090605

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