Mitchell v City of New York

Mitchell v City of New York 2019 NY Slip Op 01149 Decided on February 14, 2019 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 February 14, 2019
Friedman, J.P., Sweeny, Webber, Kahn, Kern, JJ.
100256/11 8406 8405

[*1]Joseph B. Mitchell, et al., Plaintiffs-Appellants,

v

City of New York, et al., Defendants-Respondents.

Giuliano McDonnell & Perrone, LLP, Mineola (Matthew M. Gorden of counsel), for appellants.

Fabiani, Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for respondents.

Orders, Supreme Court, New York County (Lucy Billings, J.), entered August 9, 2017, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiffs' motion for partial summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) claims, unanimously affirmed, without costs.

There is no viable Labor Law § 240(1) claim where, as here, "plaintiff simply lost his footing while [descending] a properly secured, non-defective extension ladder that did not malfunction" (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012]). Furthermore, inasmuch as the ladder was placed in compliance with 12 NYCRR 23-1.21(b)(4)(i), dismissal of the Labor Law § 241(6) claim was warranted.

We have considered plaintiffs' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2019

CLERK