Carchipulla v 6661 Broadway Partners, LLC

Carchipulla v 6661 Broadway Partners, LLC 2012 NY Slip Op 03732 Decided on May 10, 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 May 10, 2012
Tom, J.P., Andrias, Catterson, Acosta, Manzanet-Daniels, JJ.
7607 302796/08 -1592

[*1] & Angel Carchipulla, Plaintiff-Respondent,

v

6661 Broadway Partners, LLC, Defendant-Appellant, Gavino Construction Corp., Defendant.




Kral Clerkin Redmond Ryan Perry & Van Etten LLP, Melville
(James V. Derenze of counsel), for appellant.
Gorayeb & Associates, P.C., New York (John M. Shaw of
counsel), for respondent.

Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered October 20, 2011, which denied defendant's motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion for partial summary judgment on the issue of liability under Labor Law § 240(1), unanimously affirmed, without costs.

Plaintiff established his prima facie entitlement to summary judgment by showing that defendant's failure to provide an adequate safety device enumerated in Labor Law § 240(1) proximately caused him to fall off a ladder, injuring him (see Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289 [2002]). Plaintiff was not required to present evidence of a specific structural defect in the ladder (see Lipari v AT Spring, LLC, 92 AD3d 502, 503-504 [2012]; Orellano, 292 AD2d at 290-291). Contrary to defendant's unpreserved contention, there is no triable issue of fact about whether plaintiff's negligence was the sole proximate cause of the accident, given that there is no evidence that he fell because he simply lost his footing (see Ervin v Consolidated Edison of N.Y., 93 AD3d 485 [2012]; Lipari, 92 AD3d at 504). Rather, plaintiff's uncontradicted testimony was that the ladder shook and fell while plaintiff was standing on it.

Defendant failed to preserve its arguments that the court should have dismissed plaintiff's common law negligence and Labor Law §§ 200 and 241(6) claims. In any event, defendant's contentions regarding those claims are academic in light of the grant of plaintiff's cross motion for partial summary judgment on
liability (see Henningham v Highbridge Community Hous. Dev. Fund Corp., 91 AD3d 521, 522 [2012]; Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 12 [2011]).

M-1592 - Carchipulla v Broadway Partners, LLC, et al. [*2] Motion for a stay of trial pending appeal denied.

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

ENTERED: MAY 10, 2012

CLERK