Ciborowski v 228 Thompson Realty, LLC

Ciborowski v 228 Thompson Realty, LLC 2020 NY Slip Op 07268 Decided on December 03, 2020 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 and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 152844/15 Appeal No. 12557 Case No. 2020-01670

[*1]Tomasz Ciborowski, Plaintiff-Appellant,

v

228 Thompson Realty, LLC, Defendant-Respondent.

Haworth Barber & Gerstman, LLC, New York (Tara Fappiano of counsel), for appellant.

The Perecman Firm, P.L.L.C., New York (Peter D. Rigelhaupt of counsel), for respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered February 7, 2020, which, to the extent appealed from, granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff established prima facie a violation of Labor Law § 240(1) and an injury proximately caused by that violation by testifying that the ladder on which he was standing to paint a wall wobbled and caused him to lose his balance and fall (Ocana v Quasar Realty Partners L.P., 137 AD3d 566 [1st Dept 2016], lv dismissed 27 NY3d 1078 [2016]). In opposition, defendant failed to raise an issue of fact as to whether plaintiff slipped or whether his [*2]own actions caused the ladder to move, as there is no evidentiary

basis for these contentions (see Ortiz v Burke Ave. Realty, Inc., 126 AD3d 577 [1st Dept 2015]). Moreover, the opinion by defendant's expert, who never examined the ladder, was unsupported and speculative (see Merino v Continental Towers Condominium, 159 AD3d 471, 472-473 [1st Dept 2018]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 3, 2020