Fernandez v. 213 East 63rd Street LLC

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 12, 2013, which granted plaintiffs motion for summary judgment on the issue of liability under Labor Law § 240 (1), unanimously affirmed, without costs.

Plaintiff established his entitlement to judgment as a matter of law. Plaintiff submitted evidence, including his deposition testimony, showing that while installing black iron into a concrete ceiling, the A-frame ladder that he was using “kicked out” from underneath him, causing him to fall to the ground (see Panek v County of Albany, 99 NY2d 452 , 458 [2003]).

Defendants’ opposition failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. Even assuming that defendants presented sufficient evidence to raise a triable issue as to whether at the time of his accident, plaintiff, contrary to his deposition testimony, was using the ladder by leaning it against the wall in a folded position, defendants nonetheless offered no evidence that plaintiff was ever instructed not to use the ladder in this manner (see e.g. Cuentas v Sephora USA, Inc., 102 AD3d 504 [1st Dept 2013]).

Concur— Acosta, J.E, Renwick, Feinman and Clark, JJ.