Aponte v City of New York

Aponte v City of New York 2008 NY Slip Op 08261 [55 AD3d 485] October 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 10, 2008

Norberto Aponte, Respondent,
v
City of New York et al., Appellant.

—[*1] Rubin, Fiorella & Friedman, LLP, New York (Shelley R. Halber of counsel), for appellants.

Bader Yakaitis & Nonnenmacher, LLP, New York (Robert E. Burke of counsel), for respondent.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 7, 2007, which granted plaintiff's motion for partial summary judgment on the issue of liability on his cause of action under Labor Law § 240 (1) as against defendants City of New York and City of New York Department of Design and Construction, and denied such motion as against defendant O'Brien Kreitsberg, Inc. (OBK), unanimously affirmed, without costs.

Defendants' failure to provide adequate safety devices and to properly secure the ladder was a contributing cause of the accident. Plaintiff's conduct, at most, constituted comparative negligence, which is not a defense under Labor Law § 240 (1) (see Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173 [2004]; Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289 [2002]).

Regarding the court's denial of plaintiff's motion for partial summary judgment as against OBK, the "construction manager" for the project, plaintiff did not cross-appeal from this ruling (see CPLR 5515). In any event, given the existence of factual issues concerning the scope of the construction manager's oversight and control of the work, the motion court's ruling was appropriate (see e.g. Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]).

We have considered defendants' remaining contentions, including that the motion was [*2]premature in light of the need for further discovery, and find them unavailing. Plaintiff's request to strike material from the record on appeal is denied. Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ.