Majority
Order, Supreme Court, New York County (Paul Wooten, J.), entered January 30, 2014, which denied plaintiffs motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim, unanimously reversed, on the law, without costs, and the motion granted.
In opposition, defendants failed to raise a triable issue of fact. There is no support for defendants’ argument that the record contains inconsistent accounts as to how the accident occurred (see e.g. Marrero v 2075 Holding Co. LLC, 106 AD3d 408 [1st Dept 2013]). There is no evidence that plaintiff fell simply because he lost his balance (see e.g. Carchipulla v 6661 Broadway Partners, LLC, 95 AD3d 573 [1st Dept 2012]), and regardless of whether a lift and another ladder were available at the job site, “there was no showing that plaintiff was expected, or instructed, to use those [devices] and for no good reason chose not to do so” (Dwyer v Central Park Studios, Inc., 98 AD3d 882 , 884 [1st Dept 2012]).
Concur—Tom, J.E, Friedman, Gische and Clark, JJ.
Cases cited
- Fanning v. Rockefeller University 106 AD3d 484 p. 489
- Marrero v. 2075 Holding Co. 106 AD3d 408 p. 489
- Carchipulla v. 6661 Broadway Partners, LLC 95 AD3d 573 p. 489
- Dwyer v. Central Park Studios, Inc. 98 AD3d 882 at 884 p. 489