Practice point: Plaintiff demonstrated prima facie entitlement to summary
judgment as to liability through his
testimony that, at the direction of the defendants' site foreman, he
used the only ladder on the floor, an open A-frame that was "not
too far" from the foreman's toolbox, and that while he was standing on the ladder, it became unstable, wobbled and fell, causing him to fall
and sustain injury.
However, summary judgment was denied as, in opposition, defendants raised factual
questions as to whether plaintiff was provided an adequate ladder, and,
if so, whether he knew it was available and that he was expected to use
it, but nevertheless unreasonably chose not to use it, thereby causing
his own injury. In
his affidavit, the site foreman avers that prior to the accident, he directed plaintiff not to use "a couple of ladders, broken-up
and busted-up" that had been placed by the garbage bins. He further averred that
"at least two A-frame sturdy ladders" were on the floor, and that he
told plaintiff to "sweep the floor until a safe ladder" was
available. According to the foreman, upon arriving at the scene of the
accident, he observed that plaintiff had used a ladder that the foreman
had specifically instructed him not to use.
Case: Morato-Rodriguez v Riva Constr. Group, Inc., NY Slip Op 01408 (1st Dept. 2014).
Here is the decision.
Tomorrow's issue: The preclusion of expert testimony, and the appealability of an order effectively granting reargument.
