Upon the foregoing papers, it is ordered that the motion is determined as follows:

This is an action to recover for personal injuries plaintiff allegedly sustained in February 2006, as a result of violations of Labor Law sections 200, 240(1), and 241(6) and common-law negligence. Plaintiff was an employee of nonparty Par Environmental Corporation (Par Environmental). According to plaintiff, while he was descending a ladder at premises owned by New York Presbyterian (the subject premises), in the course of performing his work, the ladder shifted and he fell.

Plaintiff has moved for partial summary judgment only with respect to his claim brought under Labor Law section 240 (1) against New York Presbyterian.^[FN1] In support of the branch of his motion against New York Presbyterian, plaintiff has argued that New York Presbyterian is liable as the owner of the premises.

Labor Law section 240 (1) provides that contractors, owners and their agents "shall furnish or erect, or cause to be furnished or erected ... scaffolding ... ladders ... and other devices [*2]which shall be so constructed, placed and operated as to give proper protection" to a person employed on the premises.

On this branch of his motion, plaintiff has the burden of demonstrating that New York Presbyterian's prima facie violation of Labor Law section 240(1) proximately caused his injury (see, Mingo v Lebedowicz, 57 AD3d 491, 492 [2nd Dept. 2008]). Plaintiff has relied upon, among other things, his deposition testimony and the affidavit of Bogdan Skica (Skica), an employee of Par Environmental. Plaintiff's undisputed testimony and Skica's statements in his affidavit have demonstrated that plaintiff was working on an unsecured ladder that shifted and caused plaintiff to fall. It is undisputed that New York Presbyterian was the owner of the subject premises. Through this evidence, plaintiff has satisfied his initial burden against New York Presbyterian (see, Florestal v City of New York, 74 AD3d 875 [2nd Dept. 2010]; Mingo v Lebedowicz, 57 AD3d at 493, supra).

New York Presbyterian, in opposition, has argued that there are issues of fact as to whether plaintiff's actions were the sole proximate cause of the accident. The sole proximate cause defense is applicable only where plaintiff's actions are the sole cause of his alleged injuries and there has been no statutory violation by a defendant (see, Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]). "[R]egardless of the precise manner in which the accident occurred, a defendant is not absolved from liability where . . . a plaintiff's injuries are at least partially attributable to the defendant's failure to provide proper protection as mandated by the statute" (Cammon v City of New York, 21 AD3d 196, 201 [1st Dept. 2005]).

New York Presbyterian has relied upon plaintiff's testimony. Plaintiff's relevant testimony has reflected that three ladders were present at the work site but that only one ladder had been set up for the work plaintiff was to perform. Prior to his fall, plaintiff observed other workers use the ladder without incident, checked the ladder before he climbed it and found no problems with it, and climbed the ladder without incident. However, as plaintiff descended the ladder, it shook and he lost his balance. Nothing in the record has demonstrated that plaintiff was aware that the ladder he used was defective in any way, or that he knowingly chose to use an inadequate device despite the availability of an adequate device (cf. Robinson v East Med. Ctr., LP, 6 NY3d 550, 555 [2006] [where the plaintiff's choice to use inadequate ladder, despite proper ladders readily available at site, was the sole proximate cause of his accident]). Therefore, New York Presbyterian has failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident.

Plaintiff has also moved for summary judgment on his claim brought under Labor Law § 240 (1) against Society of The NY Hospital. CPLR 3212 (a) provides that any party may move for summary judgment in an action after issue has been joined. [*3]However, since issue has not been joined in the instant action by Society of The NY Hospital because it has failed to answer the complaint or to otherwise make an appearance in this case, plaintiff's instant motion against Society of The NY Hospital is premature and improper (CPLR 3212 [a]; see, Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727-728 [2nd Dept. 2006]).

Accordingly, the branch of plaintiff's motion for partial summary judgment on his claim brought under Labor Law section 240 (1) against New York Presbyterian is granted. The branch of plaintiff's motion for summary judgment against Society of The NY Hospital is denied.

J.S.C.

Appearances of Counsel:

For Plaintiff: Robert A. Cardali & Associates, LLP, by Richard Slater, Esq., 39 Broadway, New York, NY

For Defendant New York Presbyterian Hospital-New York Weill Cornell Center: Platzer, Luca & Pearl, LLP, by Edward J. Guardaro, Jr., Esq., Of Counsel, 81 Main St., White Plains, NY

Defendant Society of the NY Hospital: No Appearance