Opinion
12380 Index No. 24647/13E Case No. 2019-2509
11-17-2020
Saikou SINERA, Plaintiff–Respondent, v. EMBASSY HOUSE EAT, LLC et al., Defendants–Appellants, Stellar Management Group, Inc., Defendant.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Timothy G. McNamara of counsel), for appellants. Edelman, Krasin & Jaye, PLLC, Westbury (Monica P. Becker of counsel), for respondent.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Timothy G. McNamara of counsel), for appellants.
Edelman, Krasin & Jaye, PLLC, Westbury (Monica P. Becker of counsel), for respondent.
Friedman, J.P., Webber, Gesmer, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered February 5, 2019, which granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action, unanimously affirmed, without costs.
Plaintiff testified that the ladder he was ascending, which was missing one of its plastic feet, moved and fell over while he was on it, thereby establishing prima facie defendants' liability under Labor Law § 240(1) (see Goreczny v. 16 Ct. St. Owner LLC , 110 A.D.3d 465, 973 N.Y.S.2d 54 [1st Dept. 2013] ). In opposition, defendants argue that plaintiff is not entitled to summary judgment because he was the sole proximate cause of his accident (see Blake v. Neighborhood Hous. Servs. of N.Y. City , 1 N.Y.3d 280, 290–291, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ). However, there is no evidence that, as defendants contend, plaintiff knowingly selected a defective ladder from among many others and placed it on an uneven floor that he did not notice was uneven (see Ortiz v. Burke Ave. Realty, Inc. , 126 A.D.3d 577, 578, 3 N.Y.S.3d 582 [1st Dept. 2015] ; Gonzalez v. City of New York , 151 A.D.3d 492, 493, 53 N.Y.S.3d 535 [1st Dept. 2017] ). Nor does the evidence that plaintiff took a step up after feeling a slight wobble and did not ask his coworker to hold the ladder raise an issue of fact as to sole proximate cause ( Ortiz , 126 A.D.3d at 578, 3 N.Y.S.3d 582 ). It may amount to contributory negligence, which, even if proved, is not a defense under the statute ( Romanczuk v. Metropolitan Ins. and Annuity Co. , 72 A.D.3d 592, 592–593, 899 N.Y.S.2d 228 [1st Dept. 2010] ).