Fernandez v 213 E. 63rd St. LLC

Fernandez v 213 E. 63rd St. LLC 2014 NY Slip Op 01676 Decided on March 13, 2014 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 March 13, 2014
Acosta, J.P., Renwick, Feinman, Clark, JJ.
11970 114910/08

[*1]John Fernandez, et al., Plaintiffs-Respondents,

v

213 East 63rd Street LLC, et al., Defendants-Appellants.




Conway Farrell Curtin & Kelly, P.C., New York (Jonathan T.
Uejio of counsel), for appellants.
Sacks & Sacks, LLP, New York (Scott N. Singer of counsel),
for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 12, 2013, which granted plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1), unanimously affirmed, without costs.

Plaintiff established his entitlement to judgment as a matter of law. Plaintiff submitted evidence, including his deposition testimony, showing that while installing black iron into a concrete ceiling, the A-frame ladder that he was using "kicked out" from underneath him, causing him to fall to the ground (see Panek v County of Albany, 99 NY2d 452, 458 [2003]).

Defendants' opposition failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. Even assuming that defendants presented sufficient evidence to raise a triable issue as to whether at the time of his accident, plaintiff, contrary to his deposition testimony, was using the ladder by leaning it against the wall in a folded position, defendants nonetheless offered no evidence that plaintiff was ever instructed not to use the ladder in this manner (see e.g. Cuentas v Sephora USA, Inc., 102 AD3d 504 [1s Dept 2013]).

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

ENTERED: MARCH 13, 2014

CLERK