This is plaintiff's CPLR 3212 motion for partial summary judgment solely pursuant to Labor Law § 240 (1). On March 4, 2014 plaintiff was employed as a carpenter with East Side Metals & Recycling, which had been contracted to work on a building demolition located on Pine Street in the City of Hudson, Columbia County. The property is owned by defendant Community, Work & Independence, Inc. which had directly contracted for the work to be done. The uncontested proof is that the ladder was not defective.

Prior to the accident the roof of the building had been removed by an asbestos abatement company. As a result, the interior of the building was open to the elements and in the area where plaintiff was working, the floor was — and had been for some time — covered with snow and ice.

Plaintiff was attempting to cut conduit located 16 to 18 feet above the floor area and in order to do so he obtained an aluminum fold out ladder from his employer, as all tools and materials were supplied by the employer. This was a 12-foot ladder that had rubber feet at both ends and, because of the presence of snow and ice, plaintiff applied a Quikrete sand mixture to the surface area to provide traction for the bottom of the ladder. Plaintiff, alone, erected the ladder, climbed to do his work and stopped at the height he intended. As he reached for some wire in the work area the top of the ladder began to slide to the left. The ladder then skidded and the base of the ladder slid to the side and plaintiff fell. The parties' submissions and indications at oral argument demonstrate that the ladder itself was not defective.

Nevertheless, "[i]nasmuch as the ladder used by plaintiff 'collapsed, slipped or otherwise [*2]failed to support him,' he has demonstrated a prima facie entitlement to partial summary judgment" (Georgia v Urbanski, 84 AD3d 1569, 1569 [2011], quoting Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188 [2007]; see Morin v Machnick Bldrs., 4 AD3d 668, 670 [2004]). The burden has thus shifted to defendants to "'present some evidence that the device furnished was adequate and properly placed and that the conduct of . . . plaintiff may be the sole proximate cause of his . . . injuries'" (Georgia v Urbanski, 84 AD3d at 1569, quoting Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d at 1188; see Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]).

By this formula, then, on the issue of proximate cause defendants have raised questions of fact regarding whether plaintiff's actions were the sole proximate cause of his injuries. As in Nicometi v Vineyards of Fredonia, LLC (25 NY3d 90 [2015]), this "plaintiff's accident was plainly caused by a separate hazard—ice—unrelated to any elevation risk" (id. at 99). As has also been usefully described by another Court, "plaintiff's elevation did not proximately cause his slip and fall; it simply contributed to the distance he fell" (Landi v SDS William St., LLC, 146 AD3d 33, 37 [2016]).

It has been repeatedly made clear that a worker's fall at a construction site, in and of itself, does not establish a violation of Labor Law § 240 (1) (see e.g. O'Brien v. Port Auth. of New York and New Jersey, 29 NY3d 27, 33 [2017]; Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]; Toefer v Long Is. R.R., 4 NY3d 399, 407 [2005]; Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 288 [2003]; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]).

In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must prove that the statute was violated and that the violation was a proximate cause of the injuries (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d at 287). Stated another way, "[l]iability may . . . be imposed under the statute only where the 'plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential' " (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Undoubtedly proof that plaintiff's own negligence was also a proximate cause cannot defeat the claim (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 39; Grant v City of New York, 109 AD3d 961, 962-963 [2013]). When, however, the evidence establishes that the plaintiff's own negligence was the sole proximate cause of the injuries — an entirely different qualifier — defendant may not be held liable for those injuries (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 39; Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d at 287; Gittleson v Cool Wind Ventilation Corp., 46 AD3d 855, 856 [2007]).

Although courts have held that the fact "a ladder is 'structurally sound and not defective is not relevant on the issue of whether it was properly placed'" (Fazekas v Time Warner Cable, Inc., 132 AD3d 1401, 1402 [2015], quoting Whalen v ExxonMobil Oil Corp., 50 AD3d 1553, 1554 [2008] [internal quotation marks omitted]; see Woods v Design Ctr., LLC, 42 AD3d 876, 877 [2007]; Petit v Board of Educ. of W. Genesee School Dist., 307 AD2d 749, 749-750 [2003]), where a fact finder might reasonably conclude that plaintiff's actions were the sole proximate cause of the accident, the motion for summary judgment must be still denied (see Heffernan v [*3]Bais Corp., 294 AD2d 401, 403 [2002]).

Here, with plaintiff's use of the Quikrete to provide traction for an unsecured ladder which plaintiff elected not to tie off, there are triable issues of fact as to whether the ladder was mispositioned on an icy surface by the plaintiff - or whether it was plaintiff's failure to tie off the ladder - either of which a fact finder could determine as the sole proximate cause of the top of the ladder sliding to the left (see Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]; Daley v 250 Park Avenue, LLC, 126 AD3d 747, 749 [2015]). With both parties agreeing that the ladder was not defective the question of fact, quite simply, is whether plaintiff's own performance of the work may have been the sole proximate cause of the accident. (Cf, Wilk v. Columbia University, —- N.Y.S.3d ——2017 WL 21106752017 NY Slip Op. 03892 [2017]; Guaman v. 1963 Ryer Realty Corp., 127 AD3d 454 [2015]) As was observed in O'Brien v. Port Auth. of N.Y & N.J, 29 NY3d 27 [2017] this case is, similarly, distinguishable from "cases involving ladders or scaffolds that collapse or malfunction for no apparent reason" where [courts] have applied "a presumption that the ladder or scaffolding device was not good enough to afford proper protection" (Blake, 1 NY3d at 289 n 8).

Consider, for example, Reyes v Khan (90 AD3d 734 [2011]), where the potential proximate cause of the accident "may have been the placement of the subject ladder on a loose soil surface" (id. at 734). There, the Court found a genuine issue of material fact as to whether plaintiff's own actions were the sole proximate cause of his injuries and thus declined to award him summary judgment (see id. at 734-735). Accordingly, plaintiff's motion for partial summary judgment based on Labor Law § 240 (1) must be, and is, denied.

Therefore, having considered the Affirmation of Lawrence D. Lissauer, Esq. with Exhibits "A" through "I" attached thereto, dated January 18, 2017, submitted in support of the motion; and the Affirmation of Peter M. Scolamiero, Esq., dated February 9, 2017, submitted in opposition to the motion; and oral argument having been heard on May 23, 2017 with Kenneth B. Fromson, Esq. appearing on behalf of plaintiff and Peter P. Balouskas, Esq. appearing on behalf of defendants, and further memorandums invited at oral argument, it is hereby

ORDERED that plaintiff's motion for partial summary judgment is denied in its entirety.

The foregoing constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated January 18, 2017 and the submissions enumerated above. Counsel for defendants are hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry upon plaintiff in accordance with CPLR 5513.