- February 15, 2018.
and Kelner, New York, NY (Gail S. Kelner of counsel), for
R. Pieret (Bartlett, McDonough & Monaghan, LLP, White
Plains, NY [David C. Zegarelli], of counsel), for respondent.
REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN
ANGELA G. IANNACCI, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from an order of the Supreme Court, Kings
County (David B. Vaughan, J.), dated December 7, 2015. The
order denied the plaintiffs motion for summary judgment on
the issue of liability on the cause of action alleging a
violation of Labor Law § 240(1).
that the order is affirmed, with costs.
October 14, 2010, the plaintiff, a carpenter, allegedly was
injured while performing renovation work at premises owned by
the defendant. At the time of the accident, the plaintiff was
installing sheetrock on the ceiling of the sixth floor dining
room. The plaintiff began his work using a ladder to take
measurements, and then returned the ladder to one of his
coworkers who had been using it first. The plaintiff then
stood on an inverted bucket to reach the ceiling and the
bucket tilted, causing him to fall.
2011, the plaintiff commenced this action against the
defendant to recover damages for personal injuries, alleging
common-law negligence and violations of Labor Law
§§ 200, 240(1), and 241(6). The plaintiff moved for
summary judgment on the issue of liability on the Labor Law
§ 240(1) cause of action. In the order appealed from,
the Supreme Court denied the motion. The plaintiff appeals.
Labor Law § 240(1), owners and general contractors, and
their agents, have a nondelegable duty to provide safety
devices necessary to protect workers from risks inherent in
elevated work sites" (King v Villette, 155
A.D.3d 619, 621; see Ross v Curtis-Palmer Hydro-Elec.
Co., 81 N.Y.2d 494, 500). "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" (Allan v DHL
Express [USA], Inc., 99 A.D.3d 828, 833; see Blake v
Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280,
287). "Liability under section 240(1) does not attach
when the safety devices that plaintiff alleges were absent
were readily available at the work site, albeit not in the
immediate vicinity of the accident, and plaintiff knew he was
expected to use them but for no good reason chose not to do
so, causing an accident. In such cases, plaintiffs own
negligence is the sole proximate cause of his injury"
(Gallagher v New York Post, 14 N.Y.3d 83, 88;
see Montgomery v Federal Express Corp., 4 N.Y.3d
805, 806; Cahill v Triborough Bridge & Tunnel
Auth., 4 N.Y.3d 35, 40).
the plaintiff failed to establish his prima facie entitlement
to judgment as a matter of law on the issue of liability on
the Labor Law § 240(1) cause of action. In support of
his motion, the plaintiff submitted transcripts of his
deposition, in which he testified that there were ladders and
Bakers scaffolds kept on the job site. In addition, the
plaintiff testified that he had previously requested more
ladders when he first started working on the project and that
additional ladders were supplied. The plaintiff testified
that on the day of his accident, he stood on the inverted
bucket because the other ladders in the dining room were in
use. However, the plaintiff, who was among a group of six
workers, also testified that he could not recall how many
ladders were in the dining room at the time of his accident,
and that he did not know if there were more than six ladders
available at the job site. Moreover, the plaintiff testified
that he did not leave the dining room area to look for a
ladder. The plaintiffs testimony failed to eliminate all
triable issues of fact as to whether there were ladders
available at the job site at the time of the accident, and
whether the plaintiffs decision to stand on the bucket was
the sole proximate cause of his injury (see Robinson v
East Med. Ctr., LP, 6NY3d 550, 554-555; Montgomery v
Federal Express Corp., 4NY3d at 806). Further, to meet
his prima facie burden, the plaintiff could not rely upon the
affidavit of his coworker, which was submitted for the first
time with the plaintiffs reply papers (see Gairy v 3900
Harper Ave., LLC, 146 A.D.3d 938, 939).
in light of the plaintiff s failure to meet his prima facie
burden, we agree with the Supreme Court's determination
to deny his motion for summary judgment, regardless of the
sufficiency of the opposing ...