         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1162
CA 12-00739
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


SUMMER KIN, CLAIMANT-APPELLANT-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT-APPELLANT.
(CLAIM NO. 115651.)


THE ROTHSCHILD LAW FIRM, P.C., EAST SYRACUSE (MARTIN J. ROTHSCHILD OF
COUNSEL), FOR CLAIMANT-APPELLANT-RESPONDENT.

LAW OFFICES OF THERESA J. PULEO, SYRACUSE (P. DAVID TWICHELL OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Court of Claims
(Nicholas V. Midey, Jr., J.), entered February 3, 2012 in a personal
injury action. The order denied claimant’s motion for partial summary
judgment and granted in part and denied in part defendant’s cross
motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting claimant’s motion seeking
partial summary judgment on liability with respect to the Labor Law §
240 (1) cause of action and granting that part of defendant’s cross
motion seeking summary judgment dismissing the Labor Law § 241 (6)
claim, and as modified the order is affirmed without costs.

     Memorandum: Claimant commenced this action seeking damages for
injuries she sustained when she fell from a ladder while working on a
bridge reconstruction project. Claimant’s employer had been hired by
defendant, the property owner, to repair the bridge in question. At
the time of the accident, claimant was using the top half of an
extension ladder that lacked rubber feet in an attempt to gain access
to a scaffold that had been erected under the bridge. When claimant
was four or five rungs from the top of the ladder, the bottom of the
ladder slid out from beneath her, causing her to fall approximately 10
feet to the ground.

     Claimant asserted causes of action for common-law negligence and
violations of Labor Law §§ 200, 240 (1) and 241 (6). Following
discovery, claimant moved for partial summary judgment on liability
with respect to her section 240 (1) cause of action, and defendant
cross-moved for summary judgment dismissing the claim in its entirety.
The Court of Claims denied the motion and granted that part of the
cross motion for summary judgment dismissing the section 200 claim and
                                 -2-                          1162
                                                         CA 12-00739

the common-law negligence cause of action.

     With respect to claimant’s appeal and that part of defendant’s
cross appeal concerning the section 240 (1) cause of action, we reject
defendant’s contention that the sole proximate cause of the accident
was claimant’s improper use of the top half of the extension ladder,
which lacked rubber feet. We conclude that, because there is no
dispute that the ladder slipped and thereby caused claimant to fall
from an elevated work site, claimant met her initial burden under
Labor Law § 240 (1) of establishing that the ladder was “not so placed
. . . as to give proper protection to [her]” (Kirbis v LPCiminelli,
Inc., 90 AD3d 1581, 1582 [internal quotation marks omitted]; see
Ozimek v Holiday Val., Inc., 83 AD3d 1414, 1415; Evans v Syracuse
Model Neighborhood Corp., 53 AD3d 1135, 1136). Thus, the burden
shifted to defendant to raise an issue of fact whether claimant’s “own
conduct, rather than any violation of Labor Law § 240 (1), was the
sole proximate cause of [her] accident” (Cahill v Triborough Bridge &
Tunnel Auth., 4 NY3d 35, 40), and defendant failed to meet that
burden.

     In order to raise an issue of fact whether claimant’s own conduct
was the sole proximate cause of the accident, defendant was required
to establish that “the safety devices that [claimant] alleges were
absent were readily available at the work site, albeit not in the
immediate vicinity of the accident, and [that claimant] knew [she] was
expected to use them but for no good reason chose not to do so,
causing an accident” (Gallagher v New York Post, 14 NY3d 83, 88; see
Ganger v Anthony Cimato/ACP Partnership, 53 AD3d 1051, 1052).
Although defendant established that ladders with rubber feet, i.e.,
the bottom halves of extension ladders, were available at the work
site for claimant’s use, defendant submitted no evidence that claimant
knew that she was expected to use only those ladders. Indeed,
claimant’s supervisor testified at his deposition that he never
instructed claimant or any other worker that only the bottom halves of
extension ladders should be used, and he further testified that, in
his view, either half of an extension ladder could safely be used if
“put up correctly.” In addition, claimant testified that she had
previously used ladders that did not have rubber feet and that she
believed that other workers had used such ladders as well. Although
claimant further testified that she realized “in retrospect” that it
was inappropriate to use the top half of the extension ladder,
defendant submitted no evidence that claimant knew at the time of the
accident that her use of the top half of the extension ladder was
unsafe. Thus, we conclude that the court erred in denying claimant’s
motion for partial summary judgment on liability under Labor Law § 240
(1), and we therefore modify the order accordingly.

     With respect to that part of defendant’s cross appeal concerning
the Labor Law § 241 (6) claim, we agree with defendant that the court
should have granted that part of its cross motion for summary judgment
dismissing that claim, which was based on defendant’s alleged
violation of two provisions of the Industrial Code. 12 NYCRR 23-1.21
(b) (4) (iv), concerning the securement of ladders from which work is
being performed, is inapplicable to the facts of this case because
                                 -3-                          1162
                                                         CA 12-00739

claimant was not performing work from a ladder; instead, she was using
the ladder to gain access to the scaffold from which she intended to
perform the assigned work. Additionally, 12 NYCRR 23-1.21 (a) sets
forth a general standard of care and is not sufficiently specific to
support a section 241 (6) claim (see generally Fisher v WNY Bus Parts,
Inc., 12 AD3d 1138, 1140). We therefore further modify the order
accordingly.

     Finally, we note that claimant on her appeal has abandoned any
contention with respect to the court’s dismissal of her common-law
negligence cause of action and her Labor Law § 200 claim (see Gowans v
Otis Marshall Farms, Inc., 85 AD3d 1704, 1704-1705; Ciesinski v Town
of Aurora, 202 AD2d 984, 984).




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
