Nechifor v RH Atlantic-Pacific LLC

Nechifor v RH Atlantic-Pacific LLC 2012 NY Slip Op 01124 Decided on February 14, 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 February 14, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.
6800 108080/09

[*1]Gheorghe Nechifor, Plaintiff-Respondent,

v

RH Atlantic-Pacific LLC, et al., Defendants-Appellants.




Malapero & Prisco LLP, New York (Frank J. Lombardo of
counsel), for appellants.
The Perecman Firm, P.L.L.C., New York (David H. Perecman
of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered June 28, 2011, which granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, granted his motion to amend the complaint to increase the ad damnum clause from $5 million to $10 million, and denied defendants' cross motion for summary judgment dismissing the section 240(1) cause of action, unanimously affirmed, without costs.

Plaintiff fell approximately 12 feet as he attempted to descend from the top of a scaffold by climbing down the side frame of the scaffold. Plaintiff made a prima facie showing of defendants' liability under section 240(1) by showing that defendants failed to provide the ladder that was supposed to be attached to the scaffold, and that such failure was a proximate cause of the accident (see Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 9—10 [2011]).

In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff's own acts or omissions constituted the sole proximate cause of the accident. Even assuming that plaintiff knew that a ladder or other appropriate safety devices were readily available to him, there is no evidence that plaintiff knew that he was expected to use the safety devices for the assigned task (see Gallagher v New York Post, 14 NY3d 83, 88-89 [2010]).

The motion court providently exercised its discretion in granting the motion to increase the ad damnum clause (see CPLR 3025[b]). Defendants are not prejudiced by the proposed [*2]amendment (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]).

We have considered defendants' remaining arguments and find them unavailing.

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

ENTERED: FEBRUARY 14, 2012

CLERK