Upon the foregoing papers, plaintiff Keith Cupidon moves for an order, pursuant to CPLR 3212, granting him summary judgment on the issue of liability under Labor Law § 240 (1) against defendant Dee Zlatich, as Trustee of the Dee Zlatich Revocable Trust.^[FN1]

This case arises from an accident which occurred on July 23, 2004, in Brooklyn, New York. At the time of the accident, plaintiff was employed by Park Slope Brownstone Restoration, Inc., as part of a crew performing work at premises located at 91 8th Avenue and owned by Dee Zlatich. The workers were employed to find and correct a leak in the cellar level of the building.

The crew worked mainly in the backyard of the building. Plaintiff testified that the only way for the workers to reach the backyard was to go through the cellar, which had an entrance at the front and the back of the building. There was no permanent ladder or stair leading from the [*2]backyard cellar entrance down into the cellar itself. Accordingly, on the first day of the job, plaintiff's employer set up a six-foot aluminum ladder for the workers to use to go down into the cellar. That ladder remained in place until plaintiff's accident and was the only way to reach the cellar from the backyard. Plaintiff testified that the ladder leaned against the wall of the cellar, but was not fastened to the opening or the building in any manner, and that no one would hold the ladder as the workers descended it. In addition, plaintiff testified that it was a "strain" to use the ladder because the top of the ladder was a few feet short of the opening of the cellar entrance. Plaintiff alleges that he complained to his employer that the ladder was too short, but that the employer said that he did not have another ladder to use.

According to plaintiff, Ms. Zlatich offered to let the workers go through her basement apartment to move materials from the front of the building to the backyard, but plaintiff's employer refused to allow the workers to do so. In contrast, Ms. Zlatich testified that she offered to plaintiff's employer that she would let the workers go through her apartment only on the day of the accident itself, as it was a particularly hot day. Further, she testified that the workers did go through her apartment to transport materials on that day.

Just prior to the accident, plaintiff was in the backyard preparing to transport some materials by going through the cellar. Accordingly, plaintiff stepped from the ledge of the backyard cellar entrance onto the first step of the ladder when the ladder suddenly gave way and moved away from the wall. Plaintiff testified that he attempted to avoid falling by grasping the chain hanging from the metal doors leading into the cellar, but the doors came down on his hand, severing his finger and causing plaintiff to fall to the bottom of the cellar.

On April 21, 2005, plaintiff commenced the instant action against defendant. In his bill of particulars, plaintiff alleges negligence as well as violations of Labor Law §§ 200, 240 (1), and 241 (6). Discovery ensued and, on October 31, 2006, plaintiff filed a note of issue. Plaintiff now moves for partial summary judgment on his Labor Law § 240 (1) claim.

Labor Law § 240 (1), known as the "scaffold law," was enacted to provide absolute liability for construction activities involving a significant risk due to elevation. It provides in relevant part:

"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

The duty imposed by Labor Law § 240 (1) is nondelegable, and "an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]). To establish a violation of Section 240 (1), a plaintiff must show that he or she was subject to particular risk because of "the relative elevation at which the task [had to] be performed or at which materials or loads [had to] be positioned or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

Plaintiff argues that he is entitled to summary judgment on his Section 240 (1) claim in as [*3]much as he submitted evidence that his fall was caused by an unsecured ladder that slipped out from underneath him. Defendant argues that plaintiff failed to establish a prima facie case because he did not put forth any evidence that the ladder was defective. Defendant also argues that there is a question of fact as to whether plaintiff was the sole proximate cause of the accident (see e.g. Blake v Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280, 291 [2003]).

At the outset, defendant's argument that plaintiff failed to prove that there was a defect in the ladder is irrelevant, as evidence that a worker's fall was caused by the movement or slipping away of an unsecured ladder constitutes prima facie proof of a Labor Law § 240 (1) violation (see e.g. Chlap v 43rd St.-Second Ave. Corp., 18 AD3d 598, 598 [2005]; Loreto v 376 St. Johns Condominium, Inc., 15 AD3d 454, 455 [2005]; Sztachanski v Morse Diesel Intl., Inc., 9 AD3d 457, 457 [2004]; Peter v Nisseli Realty Co., 300 AD2d 289, 290 [2002]; Madden v Trustees of Duryea Presbyt. Church, 210 AD2d 382, 382 [1994]). Since plaintiff testified that he fell when an unsecured ladder slipped out from under him, plaintiff has demonstrated that he is entitled to summary judgment under Labor Law § 240 (1). Thus, the burden shifts to defendant to demonstrate the existence of an issue of material fact (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant does not submit any evidence disputing plaintiff's contention that the ladder was unsecured or that it slipped out from underneath him. Instead, defendant relies on the fact that Ms. Zlatich testified that, on the day of the accident, she gave plaintiff's employer permission to have the workers go through her apartment, rather than using the cellar. Thus, defendant argues that plaintiff's "choice" to use the ladder, about which he had previously complained, was the sole proximate cause of this accident (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 555 [2006]).^[FN2]

Despite defendant's argument, the facts of this case are not "controlled by Robinson." In Robinson, the court found that the plaintiff was the sole proximate cause of his accident because he knowingly chose to use a ladder that was too short for the task, despite the availability of taller ladders on site, and because he misused the shorter ladder by standing on its top cap. In Robinson, the plaintiff:

"knew that he needed an eight-foot ladder . . . . He acknowledge[d] that there were eight-foot ladders on the job site, that he knew where they were stored, and that he routinely helped himself to whatever tools he needed rather than requesting them from the foreman. . . . Yet [plaintiff] proceeded to stand on the top cap of a six-foot ladder, which he knew was not tall enough for this task, without talking to the foreman again, or looking for an eight-foot ladder beyond his immediate work location. In short, there were adequate safety devices eight foot ladders available for plaintiff's use at the job site."

In addition, in this case, defendant does not allege that plaintiff "misused" the ladder that was set up for the workers to descend into the cellar (cf. e.g. Robinson, 6 NY3d at 555 [plaintiff misused ladder by standing on top cap]; Blake, 1 NY3d at 285 [plaintiff failed to engage locking clips on ladder that collapsed]).^[FN3] Moreover, in this case, unlike in Robinson or Letterese, defendant does not contend that there were any other available ladders on site. Although Ms. Zlatich testified that she allowed the workers to go through her home on the day of the accident, defendant offers no proof that plaintiff was ever ordered to go through Ms. Zlatich's apartment or not to use the ladder in question. Indeed, plaintiff testified that he was prohibited by his employer from going through Ms. Zlatich's apartment. In any case, defendant has offered no proof to rebut plaintiff's showing that the employer failed to provide an adequate safety device for the workers to use in entering the cellar through the backyard entrance, in violation of Section 240 (1). "[W]here, as here, a violation of Labor Law § 240 (1) is a proximate cause of an accident, the worker's conduct cannot be deemed solely to blame for it," and so the sole proximate cause defense does not apply (Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 696 [2006]).

Accordingly, plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) is granted.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.