The Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell when he attempted to descend a 28-foot ladder. Apparently a 40-foot ladder would have been safer, but there was no showing a 40-foot ladder was available. Therefore plaintiff’s use of a 28-foot ladder could not be the sole proximate cause of his injury:
… [T]he plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that he was injured when he fell while descending an unsecured, 28-foot ladder, and that he was not provided with a safety device to prevent him from falling … . Contrary to Halsted’s (defendant’s) contention, it failed to raise a triable issue of fact as to whether the plaintiff’s decision to use a 28-foot ladder, rather than a 40-foot ladder, was the sole proximate cause of his injuries. The record reveals that there were no 40-foot ladders readily available to the plaintiff on the date of his accident, and that a Halsted employee nevertheless instructed the plaintiff that he was required to complete his job, or be fired. Under these circumstances, the plaintiff’s use of the 28-foot ladder cannot be said to be the sole proximate cause of his injuries … . Pacheco v Halsted Communications, Ltd., 2016 NY Slip Op 07303, 2nd Dept 11-9-16
LABOR LAW-CONSTRUCTION LAW (FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)/LADDERS (FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)/SOLE PROXIMATE CAUSE (LABOR LAW, FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)