Egan v. Monadnock Construction, Inc.

— 693 — Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 7, 2006, which denied plaintiffs motion for partial summary judgment on his Labor Law § 240 (1) claim, and granted defendant’s cross motion for summary judgment dismissing the entire complaint, affirmed, without costs or disbursements. The record establishes that in erecting scaffolding on the first floor of the building under construction, plaintiff covered the staircase that had provided the only means of access to the basement. With the staircase covered, plaintiff realized he needed additional materials for the scaffolding that were located in the basement, which was approximately 10 feet below the first floor. Instead of dismantling the first-floor scaffolding or attempting to locate one of the sufficiently tall straight ladders on site but not in the immediate vicinity of his work, plaintiff decided to use a too short six-foot A-frame ladder that had been left in the basement near the covered staircase. As plaintiff explained, he “needed to get down to the basement, and that was the only way to get down.” Unfortunately, the basement space was so narrow that the A-frame ladder could not be fully opened so the braces could be locked. No one instructed plaintiff to use the A-frame to descend to the basement; rather, on his own, he decided that removing the scaffold that blocked the staircase would be “too big a job.” Nor did plaintiff ask for one of the taller straight ladders that were on the site. After successfully lowering himself onto the top of the ladder and descending into the basement, plaintiff retrieved the materials and ascended the ladder. As plaintiff reached for a rebar to use in hoisting himself back up to the first floor, the ladder, which was unsteady as a result of not being fully opened, slid out from underneath him and he fell to the basement floor, sustaining injury. Under these circumstances, the court properly granted defendant’s cross motion and dismissed the section 240 (1) cause of action. Plaintiffs own actions were the sole proximate cause of his injuries, disqualifying him from recovery under this section of the statute (see Robinson v East Med. Ctn, LP, 6 NY3d 550 [2006]; Montgomery v Federal Express Corp., 4 NY3d 805 [2005]). This case is strikingly similar to Montgomery. There, ladders were available at the job site, albeit not in the immediate vicinity, and as here, there was no record evidence that the — 694 — plaintiff knew that a more appropriate ladder was available. As the Court noted, rather than fetch a ladder, the plaintiff and a coworker climbed to the motor room from the roof by standing on an overturned bucket. Upon completing the job, the plaintiff jumped down to the roof and injured his knee. In affirming this Court’s dismissal of plaintiffs section 240 (1) cause of action (307 AD2d 865 [2003]), the Court of Appeals held that “since ladders were readily available, plaintiffs ‘normal and logical response’ should have been to go get one. Plaintiffs choice to use a bucket to get up, and then to jump down, was the sole cause of his injury” (4 NY3d at 806). Plaintiffs Labor Law § 241 (6) cause of action, which relied on an alleged violation of Industrial Code (12 NYCRR) § 23-1.21 (b) (4), was also properly dismissed. The Code provision is inapplicable because the ladder plaintiff used to ascend from the basement was not being used “as a regular means of access between floors” (§ 23-1.21 [b] [4] [i]) of the building, and in any event, any alleged violation of the section was not a proximate cause of his injuries (see Trippi v Main-Huron, LLC, 28 AD3d 1069, 1070 [2006]). Concur—Sullivan, Nardelli, Sweeny and Malone, JJ.