Grant v Steve Mark, Inc.

Grant v Steve Mark, Inc. 2012 NY Slip Op 05075 Decided on June 21, 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 June 21, 2012
Tom, J.P., Andrias, Friedman, Moskowitz, Renwick, JJ.
7995 8321/03

[*1]Maxine Grant, Plaintiff-Appellant,

v

Steve Mark, Inc., et al., Defendants-Respondents.




Melucci, Celauro & Sklar, LLP, New York (Daniel Melucci of
counsel), for appellant.
Keidel, Weldon & Cunningham, LLP, White Plains (Robert J.
Grande of counsel), for respondents.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered June 29, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff's cross motion for summary judgment on the issue of defendants' liability under Labor Law § 240(1), unanimously modified, on the law, defendants' motion denied, and otherwise affirmed, without costs.

Plaintiff testified that while cleaning the top shelves of a closet, in an apartment that was undergoing a gut renovation, the A-frame ladder that she was using to complete the task tipped over causing her to fall to the ground with the ladder falling on top of her. Under these circumstances, dismissal of the section 240(1) cause of action was improper. Where, as here, a plaintiff has shown that the ladder on which she was standing was unstable and tipped over, a prima facie case of liability under Labor Law § 240(1) has been 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]).

However, plaintiff is not entitled to summary judgment on the issue of liability. The manner of the happening of the accident is within the exclusive knowledge of plaintiff, and the only evidence submitted in support of defendants' liability is plaintiff's account. Defendants should have the opportunity to subject plaintiff's testimony to cross-examination to explore [*2]whether she misused the ladder and was the sole proximate cause of the accident, and to have her credibility determined by a trier of fact (see e.g. Manna v New York City Hous. Auth., 215 AD2d 335 [1995], lv denied 87 NY2d 801 [1995]).

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

ENTERED: JUNE 21, 2012

DEPUTY CLERK