Krejbich v Schimenti Constr. Co., Inc.

Krejbich v Schimenti Constr. Co., Inc. 2012 NY Slip Op 03272 Decided on April 26, 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 April 26, 2012
Andrias, J.P., Saxe, Catterson, Renwick, Román, JJ.
7486 108588/09

[*1]Jan Krejbich, Plaintiff-Respondent,

v

Schimenti Construction Company, Inc., et al., Defendants-Appellants.




Herzfeld & Rubin, P.C., New York (Joseph E. Donat of
counsel), for appellants.
O'Dwyer & Bernstien, LLP, New York (Steven Aripotch of
counsel), for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 12, 2011, which granted plaintiff's motion for summary judgment on the issue of liability on his cause of action under Labor Law § 240(1), unanimously affirmed, without costs.

Plaintiff established his entitlement to judgment as a matter of law. Plaintiff testified that while he was installing wooden siding to a shed, the A-frame ladder he was standing upon tipped over, causing him to fall to the ground and sustain injury. Plaintiff's version of events was corroborated by his coworker. Accordingly, a violation of section 240(1) was established (see Harrison v V.R.H. Constr. Corp., 72 AD3d 547 [2010]; Thompson v St. Charles Condominiums, 303 AD2d 152, 154 [2003], lv dismissed 100 NY2d 556 [2003]). In opposition, defendants failed to raise a triable issue of
fact. The defendants failed to put forth any evidence of record that establishes that plaintiff was the sole proximate cause of his injuries. Moreover, conflicting accounts as to the positioning of the ladder after the accident and the color of the ladder that plaintiff was using do not create an issue of fact as to proximate cause (see e.g. Vergara v SS 133 W. 21, LLC, 21 AD3d 279, 280 [2005]).

We have considered defendants' remaining contentions, including that the height from which plaintiff fell was de minimis, and find them unavailing.

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

ENTERED: APRIL 26, 2012

CLERK