PLAINTIFF WAS STANDING ON THE SECOND RUNG FROM THE TOP, STRADDLING THE LADDER, WHEN IT WOBBLED AND FELL; THE NEED TO STAND NEAR THE TOP OF THE LADDER TO DO THE WORK DEMONSTRATES THE LADDER WAS NOT AN ADEQUATE SAFETY DEVICE ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THERE WAS A TWO JUSTICE DISSENT WHICH ARGUED THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S MISUSE OF THE LADDER WAS THE SOLE PROXIIMATE CAUSE OF THE ACCIDENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was standing on the second rung from the top of an extendable step ladder, straddling the ladder, when the ladder fell away from the building. The majority concluded the fact that plaintiff had to stand on the second rung from the top and straddle the ladder to do the work, he was not provided with an adequate safety device. The dissent argued there was a question of fact whether plaintiff’s misuse of the ladder was the sole proximate cause of the accident:

Supreme Court erred in finding that plaintiff failed to meet his prima facie burden, as “[w]e have repeatedly held that when a worker injured in a fall was provided with an elevation-related safety device, [here the ladder,] the question of whether that device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its function of supporting the worker and his or her materials” … . Accordingly, … an unexplained fall of the ladder while plaintiff was using it to reach an elevated work area, he is entitled to the presumption that the ladder was not good enough to afford proper protection … . Nusbaum v 1455 Wash. Ave. LLC, 2025 NY Slip Op 07066, Third Dept 12-18-25

Practice Point: Here the fact that plaintiff had to stand on the second rung from the top, straddling the ladder, to do the work demonstrated the ladder was not an adequate safety device, entitling plaintiff to summary judgment on the Labor Law 240(1) cause of action.