The Fourth Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment on the Labor Law 240(1) cause of action. Although plaintiff’s decedent fell from either a ladder or a scaffold (no witnesses) there was no evidence the ladder tipped or the scaffold was defective:
“A plaintiff is entitled to summary judgment under Labor Law § 240 (1) by establishing that he or she was subject to an elevation-related risk, and [that] the failure to provide any safety devices to protect the worker from such a risk [was] a proximate cause of his or her injuries’ ” … . Here, it is undisputed that the safety ladder used by decedent did not tip, and that the scaffolding did not collapse, tip, or shift. Decedent, himself the only witness to the accident, was unable to provide any testimony or statement concerning how the accident happened. Thus, we note that this case is unlike those cases in which the plaintiff’s version of his or her fall is uncontroverted because the plaintiff is the only witness thereto … .
It is now axiomatic that “[t]he simple fact that plaintiff fell from a ladder [or a scaffold] does not automatically establish liability on the part of [defendants]”… . Thus, we conclude that the court erred in determining that plaintiff met her initial burden on her motion by simply establishing that decedent fell from a height. We further conclude that plaintiff’s submissions raise triable issues of fact as to, inter alia, how the accident happened, from where decedent fell—the ladder or the scaffold, and whether a violation of Labor Law § 240 (1) occurred. Hastedt v Bovis Lend Lease Holdings, Inc., 2017 NY Slip Op 05522, 4th Dept 7-7-17
LABOR LAW-CONSTRUCTION LAW (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/LADDERS (LABOR LAW-CONSTRUCTION LAW, (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)