Woods v. Design Center, LLC

Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered March 1, 2006 in a Labor Law and common-law negligence action. The order, insofar as appealed from, granted plaintiffs’ motion for partial summary judgment and denied in part defendant’s cross -motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs: Memorandum: Plaintiffs commenced this Labor Law and common-law negligence action to recover damages for injuries sustained by Deana Woods (plaintiff) when she fell from the [877] second step of a three-step folding aluminum stepladder. After opening and locking the stepladder, plaintiff set it on the ceramic tile floor near the showroom wall that she was painting. She noticed no problem with the sturdiness of the ladder and did not recall that it had slipped on the tile surface prior to her fall. According to the uncontroverted deposition of plaintiff, as she proceeded to step down the ladder with her left foot, the ladder ‘ ‘ [flmmediately’ ’ tipped to the left, causing her to fall. Supreme Court properly granted plaintiffs’ motion seeking partial summary judgment on liability on the cause of action under Labor Law § 240 (1) and denied that part of defendant’s cross motion for summary judgment dismissing that cause of action because “ ‘the unrefuted evidence establishes that the [safety] device[, i.e., the ladder,] . . . failed to perform its [intended] function of supporting the worker’ ” (Musselman v Gaetano Constr. Corp., 277 AD2d 691, 692 [2000], quoting Briggs v Halterman, 267 AD2d 753, 754-755 [1999]; cf. Trippi v Main-Huron, LLC, 28 AD3d 1069, 1070 [2006]). Plaintiffs thus are entitled to partial summary judgment on liability on the Labor Law § 240 (1) cause of action because “the fact that the ladder tipped establishes that it was not so placed . . . as to give proper protection to plaintiff’ (Petit v Board of Educ. of W. Genesee School Dist., 307 AD2d 749, 750 [2003] [internal quotation marks omitted]; see Losurdo v Skyline Assoc., L.P., 24 AD3d 1235, 1236-1237 [2005]; Nephew v Klewin Bldg. Co., Inc., 21 AD3d 1419, 1420 [2005]; Chlap v 43rd St.-Second Ave. Corp., 18 AD3d 598 [2005]). Contrary to the further contention of defendant, it failed to raise a triable issue of fact whether plaintiffs conduct was the sole proximate cause of the accident. Defendant was required to present “some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of . . . her injuries” (Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188 [2007]; see e.g. Canino v Electronic Tech. Co., 28 AD3d 932, 933-934 [2006]; Costello v Hapco Realty, 305 AD2d 445, 447 [2003]). Evidence that the ladder was structurally sound and not defective “is not relevant on the issue of whether it was properly placed” (Ball, 36 AD3d at 1189), and defendant’s contention that plaintiff fell because she did not properly place her left foot on the step of the ladder is based upon mere conjecture and thus is insufficient to defeat plaintiffs’ motion (see Nicholas v EPO-Harvey Apts., Ltd. Partnership, 31 AD3d 1174 [2006]). Because plaintiff established that a statutory violation was a proximate cause of her injury, she “cannot be solely to blame for it” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]). [878] Finally, we note that defendant did not address in Supreme Court or on appeal the issue whether plaintiff was a covered employee within the meaning of Labor Law § 240 (1). We therefore conclude, contrary to the view of our dissenting colleague, that defendant conceded that plaintiff was a covered employee (see generally Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). In our view, it would be fundamentally unfair to determine this issue sua sponte and conclude, as does our dissenting colleague, that plaintiff failed to meet her initial burden of establishing that she is a covered employee within the meaning of Labor Law § 240 (1). Had defendant raised that issue in Supreme Court, plaintiffs would have been afforded the opportunity to present evidence on the issue whether plaintiff is a covered employee (see Fresh Pond Rd. Assoc. v Estate of Schacht, 120 AD2d 561 [1986], lv dismissed in part and denied in part 68 NY2d 802 [1986]). Further, neither plaintiffs nor defendant had notice that the issue would be considered by this Court and thus had no opportunity to address it. All concur except Peradotto, J., who dissents in part and votes to modify in accordance with the following memorandum.