DiCembrino v. Verizon New York Inc. , 149 A.D.3d 541 ( 2017 )

DiCembrino v Verizon N.Y. Inc. (2017 NY Slip Op 02928)

DiCembrino v Verizon N.Y. Inc.

2017 NY Slip Op 02928

Decided on April 18, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 18, 2017
Sweeny, J.P., Richter, Andrias, Webber, Gesmer, JJ.

3741 161670/14

[*1]Alberto DiCembrino, et al., Plaintiffs-Appellants,

v

Verizon New York Inc., et al., Defendants-Respondents.



Verizon New York Inc., et al., Third-Party Plaintiffs-Respondents, -against-

v

James F. Volpe Electric Co., Third-Party Defendant-Respondent.

Law Office of Daniel J. McKenna, P.C., White Plains (Daniel J. McKenna of counsel), for appellants.

Cullen and Dykman LLP, New York (Thomas J. Abernethy of counsel), for Verizon New York Inc., 435 West 50 Property Owner, L.P. and Arrow Alliance Construction Corp., respondents.

Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for James F. Volpe Electric Co., respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered May 25, 2016, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiffs did not establish their entitlement to judgment as a matter of law because their own submissions raised an issue of fact as to whether the injured plaintiff's conduct was the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]). At his deposition, the injured plaintiff testified that he fell because he missed a step on the ladder as he descended from it, and he did not attribute his fall to any inadequacy of the 12-foot A-frame ladder that he was using at that time. In contrast, his affidavit stated that the accident occurred when the ladder wobbled, and his foot slipped on debris placed on a ladder rung that lacked any non-slip treads. Thus, the conflict inherent in the injured plaintiff's own account of the accident raised an issue of fact as to whether it was caused by defendants' failure to provide an adequate safety device, or solely by plaintiff's own conduct (see Ellerbe v Port [*2]Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012]; Hamill v Mutual of Am. Inv. Corp., 79 AD3d 478, 479 [1st Dept 2010]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2017

CLERK