Torres v Our Townhouse, LLC

Torres v Our Townhouse, LLC 2012 NY Slip Op 00418 Decided on January 24, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 24, 2012
Tom, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.
6616 111545/07

[*1]Indalecio Maldonado Torres, Plaintiff-Appellant,

v

Our Townhouse, LLC, et al., Defendants-Respondents.




Shapiro Law Offices, PLLC, Bronx (Jason S. Shapiro of
counsel), for appellant.
Gallo Vitucci & Klar, LLP, New York (Chad E. Sjdquist of
counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 29, 2011, which denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff was injured when he fell to the ground while descending from a 12-foot-high sidewalk bridge without the use of a ladder or scaffold or any other safety device. Defendants contend that he was provided with a ladder and that his own decision to climb down a nearby tree instead of using the ladder was the sole proximate cause of his injuries. However, the record fails to support this contention. Even if defendants' evidence suggested that there might have been a ladder in the chassis under the truck at the work site, no evidence was presented that plaintiff knew where the ladder was or that he knew he was expected to use it and for no good reason chose not to do so (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 11 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 24, 2012

CLERK