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Daniel Fanning, Plaintiff-Respondent, the v. Rockefeller University

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 14, 2013

DANIEL FANNING, PLAINTIFF-RESPONDENT, THE
v.
ROCKEFELLER UNIVERSITY, ET AL., DEFENDANTS-APPELLANTS.

Fanning v Rockefeller Univ.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 14, 2013 Friedman, J.P., Richter, Feinman, Gische, Clark, JJ.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered August 13, 2012, which granted plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1), and denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim was properly granted. Plaintiff established prima facie entitlement to judgment as a matter of law through testimony that when the unsecured ladder on which he was working suddenly moved, he fell, causing him to sustain injury (see Betancur v Lincoln Ctr. for the Performing Arts, Inc., 101 AD3d 429 [1st Dept 2012]; Krejbich v Schimenti Constr. Co., Inc., 94 AD3d 668 [1st Dept 2012]). He was not required to present further evidence that the ladder was defective (see Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 290-291 [1st Dept 2002]). Defendants failed to raise a triable issue of fact by presenting conflicting evidence with regard to whether the A-frame ladder was 6 or 10 feet and whether it was made of wood or fiberglass, since the statute was violated under either description (see Lipari v AT Spring, LLC, 92 AD3d 502, 504 [1st Dept 2012]). Defendants' argument that plaintiff was the sole proximate cause of his accident because he chose a ladder too short for the work he was performing is speculative and thus, fails to raise an issue of fact (see Pichardo v Urban Renaissance Collaboration Ltd. Partnership, 51 AD3d 472, 473 [1st Dept 2008]).

In light of the grant of plaintiff's motion for partial summary judgment on liability, defendants' arguments regarding plaintiff's claims for common law negligence and Labor Law § § 200 and 241(6) are academic (see Carchipulla v 6661 Broadway Partners, LLC, 95 AD3d 573 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2013

CLERK

20130514

© 1992-2013 VersusLaw Inc.



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