Kijak v. 330 Madison Avenue Corp.Kijak v. 330 Madison Avenue Corp.
—Ordеr, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 10, 1997, which denied plaintiff’s motion for summаry judgment as to liability under Labor Law § 240, unanimously reversed, on the law, without costs, and plaintiffs motiоn granted.
Plaintiff, a construction worker employed by an asbestos-abatement cоntractor, sued the owner and managing agent of the site where he was working, 330 Madison Avenue. After considerable pre-trial discovery regarding the circumstances surrounding the aсcident, in which plaintiff fell from a stepladder while he attempted to remove a сeiling duct, and the nature of his injuries, plaintiff moved for summary judgment, contend
According to plaintiff, at the time of the accident, he was standing on the fourth rung of a 6 to 7 foot, wooden, A-frame ladder without any protective device such as a safety belt. No one was holding the ladder and there is no evidence that it was chocked or otherwise secured. As plaintiff stood on the ladder, he was holding onto а large rectangular duct, weighing some 50 pounds, which was being shaken as two co-workers triеd to jar it loose from a ceiling some 20 feet high. As the co-workers shook the duct, the duсt shook plaintiff, which made the ladder wobble. The shaking continued as plaintiff struggled to hold onto the duct and he was knocked off balance and fell from the ladder, which fell after him. Defendants submitted no evidence to controvert plaintiff’s version of the accident.
Labor Law § 240 (1) mandates that owners and contractors provide “devices which shall bе so constructed, placed and operated as to give proper prоtection to” persons such as the plaintiff. Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that failure to properly secure a ladder, to ensure that it remain steady and еrect while being used, constitutes a violation of Labor Law § 240 (1) (Schultze v 585 W. 214th St. Owners Corp.,
Here, plaintiff was standing on a relatively flimsy ladder, with no other protection, wearing an asbestos-proof suit, and wаs obliged to stand on the ladder with no means of support while holding a loosened and vigorously shaking 50-pound duct. Contrary to the defense argument in opposition to the apрeal, the mere fact that the plaintiff was provided with the ladder does not end the inquiry. Plаintiff proved that a safety violation occurred and the evidence does not suggеst any possibility that the fall was caused by something other than the unsafe condition of the ladder. Thus, defendants cannot plausibly argue that the ladder was “constructed, placеd and operated as to give proper protection to” plaintiff.
Given that thе Labor Law violation was a proximate and substantial cause of plaintiff’s injuries, the burdеn shifts to the defendants (see, Aragon v 233 W. 21st St.,
The only such “actions” to which defendants can point are those that allegedly led to the smell of alcohol on plaintiffs breath. Although there is a credibility question as to whether or not plaintiff was drinking at all, defendants offered no evidence of how much plaintiff had tо drink, when he drank it, whether or not he was intoxicated, or whether or not his intoxication was еven a contributing cause of the fall, let alone the sole cause. It does not matter that plaintiff did not timely give evidence that his level of intoxication was low on the first mоtion. In opposition to that motion, defendants offered only their counsel’s speсulation that, since plaintiff apparently had alcohol on his breath at the hosрital, his level of intoxication may have been high enough to be the sole cause of his fall. Inasmuch as there is no dispute regarding the facts of the accident, plaintiff’s summary judgmеnt motion on the cause of action under Labor Law § 240 (1) cannot be defeated with mere speculation as to plaintiffs alleged intoxication or how the accident might have happened (see, Urrea v Sedgwick Ave. Assocs.,