Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), for appellants.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Elizabeth L. Knapp of counsel), for respondents.
MARK C. DILLON, J.P., RANDALL T. ENG ARIEL E. BELEN SANDRA L. SGROI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated June 15, 2011, which denied their 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 affirmed, with costs.
"In order to prevail on a Labor Law § 240(1) cause of action, [a] plaintiff must establish that the statute was violated and that the violation was a proximate cause of his [or her] injuries" (Delahaye v Saint Anns School, 40 A.D.3d 679');">40 A.D.3d 679, 682; see Berg v Albany Ladder Co., Inc., 10 N.Y.3d 902, 904; Robinson v East Med. Ctr., L.P., 6 N.Y.3d 550). Although the "mere fact that a plaintiff fell from a ladder does not, in and of itself, establish" a violation of the statute (Delahaye v Saint Anns School, 40 A.D.3d at 682; see Costello v Hapco Realty, 305 A.D.2d 445');">305 A.D.2d 445, 447), a plaintiff may establish his or her prima facie entitlement to judgment as a matter of law on a Labor Law § 240(1) cause of action by showing both that he or she fell from a defective or unsecured ladder, and that the defect or failure to secure the ladder was a proximate cause of his or her injuries (see Melchor v Singh, 90 A.D.3d 866');">90 A.D.3d 866, 868; Gilhooly v Dormitory Auth. of State of N.Y., 51 A.D.3d 719');">51 A.D.3d 719, 720; Ricciardi v Bernard Janowitz Constr. Corp., 49 A.D.3d 624');">49 A.D.3d 624, 625).
Here, the plaintiff Royston Robinson (hereinafter Robinson), a sheet metal worker, was injured when he fell approximately five feet from an unsecured, eight-foot, wooden A-frame ladder. The plaintiffs established their prima facie entitlement to judgment as a matter of law on the Labor Law § 240(1) cause of action by submitting a transcript of the deposition testimony of Robinson, the sole witness to the accident, in which he asserted that his fall from the ladder occurred when one of its front feet "popped out" or "kicked out, " the foot of the ladder began "walking the floor, " and the ladder fell over (see Gilhooly v Dormitory Auth. of State of N.Y., 51 A.D.3d at 720; Ricciardi v Bernard Janowitz Constr. Corp., 49 A.D.3d at 625; Salon v Millinery Syndicate, Inc., 47 A.D.3d 914');">47 A.D.3d 914, 915; Boe v Gammarati, 26 A.D.3d 351, 352; Granillo v Donna Karen Co., 17 A.D.3d 531, 531).
In opposition, however, the defendants raised a triable issue of fact as to whether the foot of the ladder simply kicked out and the ladder fell over, as Robinson testified, or whether Robinson's own carelessness or the manner in which he used the ladder was the sole proximate cause of his fall (see DeStefano v City of New York, 39 A.D.3d 581, 582; Bahrman v Holtsville Fire Dept., 270 A.D.2d 438, 439; cf. Gilhooly v Dormitory Auth. of State of N.Y., 51 A.D.3d at 720; Ricciardi v Bernard Janowitz Constr. Corp., 49 A.D.3d at 625; Salon v Millinery Syndicate, Inc., 47 A.D.3d at 915). The defendants offered an accident report indicating that Robinson had previously stated, within two days after the accident, that he lost his footing or balance and fell off the ladder. That accident report did not indicate that the foot of the ladder kicked out, that the ladder "walked the floor, " or that the ladder fell over, as Robinson later testified at his deposition. The defendants also offered two additional accident reports indicating that, on the day of the accident, Robinson stated that he fell off the ladder but did not mention that the foot of the ladder kicked out or the ladder fell over. Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a ...