State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 4, 2014 518149 

________________________________

MICHAEL NALEPA,

Appellant,

v

MEMORANDUM AND ORDER

SOUTH HILL BUSINESS CAMPUS, 

LLC,

Respondent.

________________________________

Calendar Date: October 9, 2014

Before: Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

__________

Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Sheppard

of counsel), for appellant.

Santacrose & Frary, Albany (Patrick D. Slade of counsel),

for respondent.

__________

Stein, J.P.

Appeal from an order of the Supreme Court (Lebous, J.),

entered March 15, 2013 in Broome County, which, among other

things, granted defendant's cross motion for summary judgment

dismissing the complaint.

Plaintiff was a pipe fitter whose employer was hired to

install pipes in a bathroom in a building owned by defendant. 

Plaintiff was working in the bathroom on the ground level of the

building while his coworker was in the ceiling locating water

lines. Upon his coworker's request for his assistance, plaintiff

ascended a 10-foot wooden, folding A-frame ladder that he found

leaning against the bathroom wall. After plaintiff climbed

approximately five feet from the ground, the bottom of the ladder
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slipped away from the wall, causing plaintiff to fall to the

ground. As a result of the injuries he sustained, plaintiff

commenced this action, asserting common-law negligence and

violations of Labor Law §§ 200, 240 (1) and 241 (6). Following

the completion of discovery, plaintiff moved for, among other

things, partial summary judgment on his Labor Law §§ 240 (1) and

241 (6) claims. Defendant cross-moved for summary judgment

dismissing the complaint arguing, among other things, that

plaintiff's own negligence was the sole proximate cause of the

accident. Supreme Court granted defendant's motion and dismissed

the complaint, prompting this appeal by plaintiff.

We affirm. In order to hold a property owner liable under

Labor Law § 240 (1), "the owner . . . must breach the statutory

duty [there]under . . . to provide a worker with adequate safety

devices, and this breach must proximately cause the worker's

injuries. These prerequisites do not exist if adequate safety

devices are available at the job site, but the worker either does

not use or misuses them" (Robinson v East Med. Ctr., LP, 6 NY3d

550, 554 [2006]). Where a "plaintiff's actions [are] the sole

proximate cause of his [or her] injuries, . . . liability under

Labor Law § 240 (1) [does] not attach" (Robinson v East Med.

Ctr., LP, 6 NY3d at 554 [internal quotation marks and citation

omitted]; accord Blake v Neighborhood Hous. Servs. of N.Y. City,

1 NY3d 280, 290 [2003]; Albert v Williams Lubricants, Inc., 35

AD3d 1115, 1116 [2006]; see Gallagher v New York Post, 14 NY3d

83, 88 [2010]). 

Our review of the record here supports Supreme Court's

conclusion that defendant met its burden of establishing as a

matter of law that plaintiff's negligence was the sole proximate

cause of the accident. In support of its motion, defendant

proffered, among other things, plaintiff's deposition testimony,

as well as the expert report of a professional engineer, Ernest

Gailor. Gailor averred that the ladder appeared to be in good

working order, was in a safe, useable condition and was an

adequate safety device for the elevation-related work that

plaintiff was performing. Gailor explained that an A-frame

ladder is not designed to be used while it is in a closed

position and leaning against a wall. Gailor also referred to

plaintiff's deposition testimony, in which plaintiff acknowledged
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that there was no reason he could not have opened the ladder, and

his awareness that using the subject ladder in the manner in

which he did was contrary to his safety training. Gailor opined

that, even though the ladder did not have rubber feet and there

may have been dust or debris on the floor, the accident would not

have occurred if the ladder had been used properly in an opened

and locked position. Ultimately, Gailor concluded that the sole

cause of the accident was plaintiff's misuse of the ladder. 

Considering this evidence, defendant met its threshold burden of

establishing that plaintiff's misuse of the otherwise adequate

safety device was the sole proximate cause of his injuries (see

Albert v Williams Lubricants, Inc., 35 AD3d at 1117), shifting

the burden to plaintiff to establish the existence of a triable

issue of fact (see Maloney v J.W. Pfeil & Co., Inc., 84 AD3d

1632, 1633 [2011]).

In response, plaintiff proffered evidence that the ladder

in question belonged to defendant and had been left by one of

defendant's employees leaning against the bathroom wall below the

ceiling area that he was attempting to access, and that the

ladder slipped out away from the wall as plaintiff was ascending

it. Additionally, plaintiff's expert, Robert Pringle, opined

that the ladder was defective because it lacked non-skid feet and

was "in a generally poor structural condition." In our view,

this evidence failed to rebut defendant's showing that

plaintiff's improper use of the ladder was the sole proximate

cause of his accident. Specifically, Pringle's inconclusive

opinion that he was "uncertain" whether the accident would have

been prevented if the ladder had been opened before plaintiff

used it is insufficient to contradict Gailor's opinion to the

contrary and to defeat summary judgment (see Ramos v Howard

Indus., Inc., 10 NY3d 218, 224 [2008]). 

We are also unpersuaded by plaintiff's claim that defendant

is at least partially at fault for having provided the ladder for

plaintiff's use by improperly placing it where plaintiff found

it, as the record is bereft of any evidence that defendant

deliberately placed the ladder in that location, leaning against

the wall, for use in that position by plaintiff or other workers

(compare Przyborowski v A&M Cook, LLC, 120 AD3d 651, 653 [2014]). 

There is no proof that defendant directed plaintiff to use the
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ladder, nor can defendant be charged with the knowledge that

plaintiff – who was performing work on ground level – was going

to use it.1 Rather, even when we view the evidence in the light

most favorable to plaintiff, the record establishes, at best,

that the ladder had been left propped up against the wall after

it had been previously used by one of defendant's employees. 

Indeed, plaintiff acknowledged that there were other ladders on

the job site belonging to his employer that were available for

his use.

Thus, we find that Supreme Court correctly determined that

plaintiff failed to raise a triable question of fact as to

whether plaintiff's negligent misuse of the ladder was the sole

proximate cause of the accident, requiring dismissal of

plaintiff's Labor Law § 240 (1) claim (see Robinson v East Med.

Ctr., LP, 6 NY3d at 554; Maloney v J.W. Pfeil & Co., Inc., 84

AD3d at 1633; Albert v Williams Lubricants, Inc., 35 AD3d at

1117). As defendant concedes, this finding is also dispositive

of plaintiff's common-law negligence and Labor Law §§ 200 and 241

(6) claims (see Kerrigan v TDX Constr. Corp., 108 AD3d 468, 471

[2013], lv denied 22 NY3d 862 [2014]; Albert v Williams

Lubricants, Inc., 35 AD3d at 1117; Capellan v King Wire Co., 19

AD3d 530, 532 [2005]; see generally PJI 2:216, 2:216A). 

Garry, Rose, Lynch and Devine, JJ., concur.

1 While the record includes testimony indicating that a

similar ladder had previously been used by defendant's employees,

there is no evidence with regard to the manner in which it was

used (i.e., whether it was used while it was opened or whether it

was used while leaning against the wall).
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ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court