No. 178 SSM 26.
Decided October 23, 2007.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered March 29, 2007. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court, New York County (Louis B. York, J.), which had granted plaintiffs' motion for partial summary judgment as to liability on a Labor Law § 240 (1) cause of action, (2) denied the motion, and (3) upon searching the record, granted defendants summary judgment dismissing the Labor Law § 240 (1) cause of action. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of Supreme Court, properly made?"
Miro v Plaza Constr. Corp., 38 AD3d 454, modified.
Paul F. McAloon P.C., New York City ( Paul F. McAloon of counsel), and Harry I. Katz, P.C., for appellants.
Barry McTiernan Moore, New York City ( Laurel A. Wedinger of counsel), for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, without costs, by denying summary judgment to defendants as to the Labor Law § 240 (1) claim and, as so modified, affirmed, and certified question answered in the negative. Assuming that the ladder was unsafe, it is not clear from the record how easily a replacement ladder could have been procured.
Plaintiff, while installing fire alarms, allegedly slipped and fell from a ladder that was partially covered with fireproofing material.
The Appellate Division majority concluded that the evidence established that plaintiff recognized the undesirability of the fireproofing material on the ladder; that the evidence established that plaintiff knew that he could have requested his employer to provide him with a clean ladder and chose not to make this request; and that plaintiffs decision not to request a new ladder, not a violation of Labor Law § 240 (1), was the sole proximate cause of the accident.