                           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
                              -2-                518149

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
                              -3-                518149

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
                                -4-                   518149

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).
                        -5-                  518149

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
