Cite as: Portillo v. Mark, 570324/12, NYLJ 1202588228503, at *1 (App. Tm., 1st, Decided November 15, 2012)

Before: Shulman, J.P., Hunter, Jr., Torres, JJ.

Decided: November 15, 2012




Plaintiff, as limited by his briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), dated June 23, 2011, which denied his motion for summary judgment as to liability on his Labor Law §240(1) and §241(6) claims.


Order (Arthur F. Engoron, J.), dated June 23, 2011, insofar as appealed from, affirmed, with $10 costs.

Although plaintiff demonstrated a prima facie entitlement to summary judgment on his Labor Law §240(1) claim via evidence tending to show that he was injured when




the open, unsecured A-frame ladder on which he was standing fell when it was hit by falling debris (see Carchipulla v. 6661 Broadway Partners, LLC, 95 AD3d 573 [2012]), defendants raised a triable issue of fact in their opposing submissions. The affidavit and deposition testimony of plaintiff's coworker, who stated that he saw plaintiff lean a closed A-frame ladder against a wall and climb to the "very top" of the ladder "in its folded position," and that plaintiff ignored the coworker's warning not to stand on top of the folded ladder, raised triable issues as to whether plaintiff's actions were the sole proximate cause of his injuries (see Santiago v. Fred-Doug 117, L.L.C., 68 AD3d 555 [2009]). Nor was plaintiff entitled to summary judgment on his Labor Law §241(6) claim. Although plaintiff submitted proof tending to establish a violation of Industrial Code (12 NYCRR) §23-1.21(b)(4)(iv), a factual issue remains as to whether any such violation was the proximate cause of plaintiff's injury, since there was evidence that plaintiff was comparatively negligent in misusing the "leaning" ladder (see Riffo-Velozo v. Village of Scarsdale, 68 AD3d 839, 842 [2009]; Montalvo v. J. Petrocelli Constr., Inc., 8 AD3d 173,




176 [2004]).