Kuras v Cornell Univ.

Kuras v Cornell Univ. 2014 NY Slip Op 04149 Decided on June 10, 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 June 10, 2014
Tom, J.P., Friedman, Gische, Clark, JJ.
12732 108537/11

[*1] Gregory Kuras, Plaintiff-Appellant,

v

Cornell University, et al., Defendants-Respondents.

Hogan & Cassell, LLP, Jericho (Michael D. Cassell of counsel), for appellant.

Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for respondents.

Order, Supreme Court, New York County (Paul Wooten, J.), entered January 30, 2014, which denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established his entitlement to judgment as a matter of law through his testimony that, while attempting to descend from the third to the second rung of an unsecured wooden A-frame ladder, the ladder (which had worn legs and no rubber tips) suddenly slipped and collapsed, causing him to fall and sustain injuries (see Goreczny v 16 Ct. St. Owner LLC, 110 AD3d 465 [1st Dept 2013]; Fanning v Rockefeller Univ., 106 AD3d 484 [1st Dept 2013]).

In opposition, defendants failed to raise a triable issue of fact. There is no support for defendants' argument that the record contains inconsistent accounts as to how the accident occurred (see e.g. Marrero v 2075 Holding Co. LLC, 106 AD3d 408 [1st Dept 2013]). There is no evidence that plaintiff fell simply because he lost his balance (see e.g. Carchipulla v 6661 Broadway Partners, LLC, 95 AD3d 573 [1st Dept 2012]), and regardless of whether a lift and another ladder were available at the job site, "there was no showing that plaintiff was expected, or instructed, to use those [devices] and for no good reason chose not to do so" (Dwyer at 884).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 10, 2014

CLERK