PLAINTIFF WAS ENGAGED IN REPAIR NOT MAINTENANCE AND THE LADDER DID NOT PROVIDE ADEQUATE PROTECTION FROM A FALL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff’s (Markou’s) motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was troubleshooting a problem with lighting when his ladder slid sideways. He jumped off the ladder and landed on his feet to avoid hitting his head on the ground. The plaintiff made out a prima facie case that he was engaged in a protected activity (repair rather than routine maintenance) and the ladder did not provide adequate protection:

… [W]e find that plaintiffs established that Markou was engaged in a protected activity under Labor Law § 240 (1), in that he was attempting to repair the overhead lighting system in the cold storage area of defendant’s premises … . …  Notwithstanding Supreme Court’s denial of plaintiffs’ motion, the court correctly concluded that plaintiffs, through the deposition testimony and sworn affidavit of their expert, sustained their prima facie burden of showing that the ladder was not “so constructed, placed and operated as to give proper protection” to Markou (Labor Law § 240 [1]), causing him to fall and sustain injuries. Markou v Sano-Rubin Constr. Co., Inc., 2020 NY Slip Op 02144, Third Dept 4-2-20