The First Department determined defendant’s claim that ladders were available was not sufficient to defeat summary judgment in favor of plaintiff who fell while standing on milk crates to work:
Plaintiff alleged that prior to performing his work he unsuccessfully looked for a ladder to use and was directed by the acting foreman to use the milk crates.
Under the circumstances, plaintiff established his entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim. The record shows that plaintiff’s accident involved an elevation-related risk and his injuries were proximately caused by the failure to provide him with proper protection as required by section 240(1) … . Defendants’ claim that ladders were available on the site is conclusory and fails to raise an issue of fact … . The sole evidentiary support for defendants’ argument was an affidavit from an individual who claimed …that there more than enough ladders available for plaintiff’s work. Even if admissible, the affidavit failed to raise a triable issue as to whether plaintiff was the sole proximate cause of his injuries since it does not indicate that plaintiff knew that there were ladders available at the site and that he was expected to use them… . Mutadir v 80-90 Maiden Lane Del LLC, 2013 NY Slip Op 07127, 1st Dept 10-31-13