The Fourth Department, reversing Supreme Court, over a two-justice well-reasoned dissent, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action should not have been granted. Plaintiff was injured when he fell from the A-frame ladder. Plaintiff testified that he might not have checked the positioning of the ladder or the locking mechanism:
We agree with defendant that Supreme Court erred in granting plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). “In order to establish his entitlement to judgment on liability as a matter of law, plaintiff was required to show that the statute was violated and the violation proximately caused his injury’ “… . Plaintiff did not know why the ladder wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so. We thus conclude that plaintiff failed to meet his initial burden on the motion. “[T]here is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident” … .
From the dissent: The fact that plaintiff could not identify why the ladder shifted does not undermine his entitlement to partial summary judgment because a plaintiff who falls from a ladder that “malfunction[s] for no apparent reason” is entitled to “a presumption that the ladder . . . was not good enough to afford proper protection” … . Although plaintiff testified at his deposition that he did not recall whether he checked the positioning of the ladder or checked that it was “locked into place,” he also testified that the ladder was upright and “fully open” near the middle of a small room, and we conclude that it would be unduly speculative for a jury to infer from plaintiff’s testimony that the sole proximate cause of the accident was his alleged failure to check its positioning or its locking mechanism … . Bonczar v American Multi-Cinema, Inc., 2018 NY Slip Op 00712, Fourth Dept 2-2-18
LABOR LAW-CONSTRUCTION LAW (PLAINTIFF TESTIFIED HE DID NOT CHECK THE POSITION OR LOCKING MECHANISM OF THE A-FRAME LADDER HE FELL FROM, PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) ACTION SHOULD NOT HAVE BEEN GRANTED, DISSENT DISAGREED (FOURTH DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF TESTIFIED HE DID NOT CHECK THE POSITION OR LOCKING MECHANISM OF THE A-FRAME LADDER HE FELL FROM, PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) ACTION SHOULD NOT HAVE BEEN GRANTED, DISSENT DISAGREED (FOURTH DEPT))