In this Labor Law action, third-party defendant Jeffrey Rosen ("Rosen") moves for summary judgment dismissing the third-party complaint and any cross claims asserted against him (motion sequence 002), and defendant 68 East 86th Street Owners Corp. ("Owners Corp.") moves for summary judgment dismissing the complaint as to common-law negligence and Labor Law §§ 200, 240(1), and 241(6) claims, all counterclaims and/or cross claims asserted against it (motion sequence 003). Plaintiff Jose Orlando Campos ("Campos") cross-moves for partial summary judgment against defendant 68 [*2]East 86th Street Owners Corp. on his Labor Law § 240(1) cause of action.^[FN1]

Campos was working for second third-party defendant Primacy Contracting Inc. ("Primacy") on July 16, 2007, when he fell from an A-frame ladder while preparing the ceiling of a closet for painting. The apartment was a cooperative apartment located at 68 East 86th Street in Manhattan, New York. Third-party defendant Jeffrey Rosen ("Rosen") was the owner of the apartment, and Owners Corp. was the cooperative corporation.

It is undisputed that Campos received work instructions from Primacy, and not Rosen or Owners Corp. The ladder that he was using was supplied by Primacy. At the time of the accident, Campos was standing on the third step of the ladder from the top. Campos used the ladder while sanding another closet in the room prior to beginning his work on the second closet. He stated that he had set the ladder in position, and made sure that the ladder was locked in an open position. At the time of the accident, no one else was in the room with him. Juan Rodriguez ("Rodriguez"), the vice president and co-owner of Primacy, was working in another room in the apartment.

At his deposition, Campos, who is Spanish speaking and was testifying through a translator, stated that he did not remember how he fell. He said that he was not dizzy or light-headed before his fall. He said that "the ladder moved forward and I went back." He also said the ladder was outside the closet after the fall, although it was inside the closet before his fall. When asked about his position after the fall, Campos indicated his position, which was described as being in a sitting position. He said that his back was on the ground inside the closet, and his feet were outside the closet. He hit his head on the area where a door would have been, had there been a door on the closet, "[b]ecause the ladder went out and I went backwards."

In an affidavit, Campos states that the ladder he used was an aluminum A-frame ladder that was old. He did not know the weight capacity rating for the ladder. At the time, he weighed approximately 240 pounds. At the time of the accident, he had already sanded the ceiling of the first closet and was working on the second closet. He put the ladder inside the second closet, opened it, and made sure the brackets on both sides of the ladder were locked to stay open. While he was sanding the ceiling, the ladder suddenly went forward and outward, and Campos fell backward. He states that he did not simply lose his balance and fall off of the ladder, nor did he become dizzy or light-headed. He hit his head when he fell, and was told by Rodriguez that he had lost consciousness for about a minute and a half. When he regained consciousness, he was on his back on the floor with his knees upward, as if he were in a sitting position, but lying on his back. His upper body was inside the closet and his legs and feet were outside of the closet. The ladder was no longer half in the closet, as he had positioned it, but was at the opposite wall of the room.

[*3]The State of New York Workers' Compensation Board awarded Campos disability payments, and concluded that he is permanently and totally disabled as a result of his work-related injury. Campos testified that he has chronic pain, takes pain medication, walks with a cane and wears a belt all the time, including when he sleeps, to support his lower back. He undergoes physical therapy once a week. He has not gone back to work at all since the accident because of the pain.

Discussion

Motion 002

Rosen moves for summary judgment dismissing the third-party complaint and all claims against him. Rosen argues that Labor Law §240(1) and §241(6) does not apply to an owner of a one-family residence who was not involved in directing the work, and therefore, he can not be held liable.

Owners Corp. contends that Rosen should not be dismissed from the action because he was supposed to obtain insurance naming Owners Corp. as an additional insured. By failing to obtain such insurance, he has left Owners Corp. exposed to liability, in violation of the proprietary lease. Rosen denies that he was obligated to obtain permission or insurance for doing the minor painting that was involved. Both parties refer to the proprietary lease in support of their positions.

The proprietary lease provides, in relevant part:

"11. The Lessee agrees to save the Lessor harmless from all liability, loss, damage and expense arising from injury to person or property occasioned by the failure of the Lessee to comply with any provision hereof, or due wholly or in part to any act, default or omission of the Lessee or of any person dwelling or visiting in the apartment, or by the Lessor, its agents, servants or contractors when acting as agent for the Lessee as in this lease provided. This paragraph shall not apply to any loss or damage which is covered by insurance which provides for waiver of subrogation against the Lessee.

* * *

"21. (a) The Lessee shall not, without first obtaining the written consent of the Lessor, which consent shall not be unreasonably withheld, make, in the apartment or building, or on the roof, terrace or balcony appurtenant thereto, any alteration, enclosure, or addition or alteration of or addition to the water, gas, or steam risers or pipes, heating or air conditioning system or units, electrical conduits, wiring or outlets, plumbing fixtures, intercommunication or alarm system, or any other installation or facility in the apartment or building. The performance by Lessee of any work in the apartment shall be in accordance with any applicable rules and regulations [*4]of the Lessor and governmental agencies having jurisdiction thereof. The Lessee shall not in any case install any appliances which will overload the existing wires or equipment in the building."

Owners Corp. states that Rosen was required to obtain insurance before engaging painters. However, in its opposition to Rosen's motion, Owners Corp. does not cite to any rule stating that requirement. Further, Owners Corp. was deposed via its superintendent, Angelo Xhelilaj ("Xhelilaj"), who testified that it was his responsibility to make sure that any workers who came into the building had insurance, if it was required. Further, Xhelilaj would have to be informed that the necessary approvals were obtained from the co-op before any work commenced. There is no evidence that there was any problem with Rosen having painters come, or that any prior approvals were required.

Paragraph 21 of the proprietary lease does not support Owners Corp.'s position. That paragraph requires permission before a lessee engages in any alterations that would affect major building systems, like electric or plumbing. That paragraph does not indicate that permission would be required for painting the interior of one's own apartment. Nor has Owners Corp. referenced any written requirement that a lessee obtain any insurance in order to do such work. There is no other evidence that Rosen was required to obtain insurance for the painting in his apartment.

In addition, pursuant to the "homeowner's exemption," owners of one and two family dwellings who contract for but do not perform the work, can not be held liable for violations of Labor Law §240(1) or §241(6). Affri v. Basch, 13 NY3d 592 (2009). Here, the evidence presented establishes that the subject premises was a one family dwelling and Rosen did not direct or control the work.

Therefore, because Rosen was not required to obtain insurance and because the homeowner's exemption relieves him of any possible liability, all claims asserted against him are dismissed.

Motion 003 and Campos' Cross Motion

Owners Corp. moves for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims. Owners Corp. maintains that there was no violation of the Labor Law because (1) the ladder worked properly; (2) Campos testified that he never felt the ladder move and he had no trouble securing it; (3) there is no evidence that the ladder was defective; (4) there is no evidence that further protective devices were needed; (5) Campos' own actions were the sole proximate cause of his fall. Campos cross moves for summary judgment on his Labor Law §240(1) claim, arguing that he was not provided with adequate safety devices, and as a result, he suffered a gravity related injury.

Owners Corp. objects to Campos' cross motion as untimely, because it was made beyond the statutory 120-day time limit. Campos maintains that because Owners Corp. made a motion on substantially the same issue, the court can address the cross motion. [*5]Campos' cross motion seeks partial summary judgment against Owners Corp only on the Labor Law § 240(1) cause of action. Because Owners Corp. sought summary judgment on the same cause of action, the cross motion can be entertained. Filannino v. Triborough Bridge & Tunnel Auth., 34 AD3d 280 (1st Dept 2006).

Owners Corp. also objects to Campos' affidavit submitted in support of his cross-motion, asserting that it cannot be considered because it seeks to rehabilitate Campos' claims by contradicting his deposition testimony. An affidavit that contradicts deposition testimony, in an effort to avoid the consequences of the testimony, should not be considered by the court. LoBianco v. Lake, 62 AD3d 590 (1st Dept 2009); Telfeyan v. City of New York, 40 AD3d 372, 373 (1st Dept 2007). However, here, Campos' affidavit does not contradict his deposition testimony. While Owners Corp. points to Campos' testimony that the ladder did not move before he fell, Campos also testified that the ladder "went forward and out" and then he fell. He does not contradict that testimony in his affidavit. The affidavit merely clarifies certain portions of the deposition which were unclear. It does not contradict his testimony in any meaningful manner, and it can be considered.

Labor Law §240(1) imposes liability on contractors and owners for the existence of certain elevation-related hazards and the failure to provide an adequate safety device of the kind enumerated in the statute. To establish a claim under this provision, a plaintiff must show that the statute was violated and that the violation proximately caused his injury. Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402 (1st Dept. 2013).

Once a plaintiff makes a prima facie showing that the ladder he was using collapsed, there is a presumption that the ladder was an inadequate safety device. Panek v. County of Albany, 99 NY2d 452, 458 (2003); Kosavick v. Tishman Constr. Corp. of NY, 50 AD3d 287, 288 (1st Dept. 2008). The burden then shifts to the defendant, who may defeat plaintiff's summary judgment motion only if there is a "plausible view of the evidence — enough to raise a fact question — that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident." Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 289 n. 8 (2003); Kosavick, 50 AD3d at 288.

I find here that Campos made a prima facie showing that the ladder he was using collapsed. Campos testified that the "ladder moved forward" and that the "ladder went out" causing him to fall back. He also testified that he set and locked the ladder into position, and that he was not dizzy or light-headed before his fall.

Owners Corp. argues that the ladder was not defective and that Campos was the sole cause of his accident. However, Owners Corp. fails to introduce any evidence to raise a fact question that the ladder was not defective or that Campos' own acts or omissions solely caused the accident. The fact that the ladder appeared to be in working order prior to the accident is not sufficient evidence to show that the ladder was free from [*6]defects or that plaintiff caused his own accident.

Additionally, while Owners Corp. contends that Campos' injury was due to a separate hazard wholly unrelated to the danger that produced the need for a ladder, it does not suggest what that separate hazard was. There is no evidence that Campos fell due to some separate hazard, unlike the case upon which Owners Corp relies. See Nieves v Five Boro. A.C. & Refrig. Corp., 93 NY2d 914 (1999).

Further, Owners Corp. has not met its burden of establishing entitlement to judgment dismissing the Labor Law §241(6) claim.

In accordance with the foregoing, it is hereby

ORDERED that third-party defendant Jeffrey Rosen's motion for summary judgment dismissing the third-party complaint and any cross claims asserted against him (motion sequence number 002) is granted and the third-party complaint and any cross claims as against him are dismissed, and the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that defendant 68 East 86th Street Owners Corp.'s motion for summary judgment (motion sequence 003) is denied; and it is further

ORDERED that plaintiff Jose Orlando Campos' cross motion for partial summary judgment on the Labor Law § 240 claim against 68 East 86th Street Owners Corp. is granted.

This constitutes the decision and order of the Court.

Dated:New York, New York

July, 2013

ENTER:

___________________________

J.S.C.