Mayancela v. Almat Realty Development, LLC — 303 A.D.2d 207

Majority

p. 207

Juan M. Mayancela, Appellant, v Almat Realty Development, LLC, Respondent.

[756 NYS2d 548]

Order, Supreme

p. 208

Court, New York County (Louise Gruner Gans, J.), entered April 2, 2002, which, to the extent appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing plaintiffs Labor Law § 240 (1) claim, and denied plaintiff s cross motion for summary judgment as to liability upon the same claim, unanimously affirmed, without costs.

In view of plaintiffs admission in his deposition testimony that for no particular reason he misused the A-frame ladder from which he fell despite specific, repeated and recent instructions from his employer respecting the ladder’s proper and improper use, defendant’s motion, based on the recalcitrant worker ^defense, for summary judgment dismissing plaintiffs Labor Law § 240 (1) claim was properly granted (cf. Jamil v Concourse Enters., 293 AD2d 271 , 273 [2002]). Plaintiffs attempt to create a triable issue through the submission of a self-serving, postdeposition affidavit contradicting his prior testimony was properly rejected by the motion court (see Perez v Bronx Park S. Assoc., 285 AD2d 402 , 404 [2001], lv denied 97 NY2d 610 [2002]). Concur — Nardelli, J.P., Buckley, Rosenberger and Marlow, JJ.

Cases cited

Jamil v. Concourse Enterprises, Inc. 293 AD2d 271 N.Y. App. Div. 2002-04-04 at 273 p. 208
Perez v. Bronx Park South Associates 285 AD2d 402 N.Y. App. Div. 2001-07-19 at 404 p. 208

Statutes and regulations cited

Labor Law p. 208