Valente v Lend Lease (US) Constr. LMB, Inc.

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Valente v Lend Lease (US) Constr. LMB, Inc. 2016 NY Slip Op 06987 Decided on October 25, 2016 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 October 25, 2016
Acosta, J.P., Renwick, Saxe, Feinman, Kahn, JJ.
2051 158634/13

[*1]Frank Valente, et al., Plaintiffs-Respondents,


Lend Lease (US) Construction LMB, Inc., et al., Defendants-Appellants, Lend Lease Project Management & Construction, et al., Defendants.

Fabiani Cohen & Hall, LLP, New York (Marcy Sonneborn of counsel), for appellants.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel, for respondents.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered June 15, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiffs established prima facie that plaintiff Frank Valente's slip and fall on grease on planks that he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold was "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" and therefore is covered under Labor Law § 240(1) (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see also Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 8-9 [1st Dept 2011]).

Defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident because he chose to use the planks instead of using a ramp that he knew was available or constructing a proper ramp from material that was readily available on site. Affidavits and other testimonial evidence demonstrate that the ramp that was available was not long enough to reach the scaffold and that plaintiff did not have time to build a ramp before meeting the crane that was approaching to assist in dismantling the scaffold (see Miranda v NYC Partnership Hous. Dev. Fund Co., Inc., 122 AD3d 445 [1st Dept 2014]).