Aponte v. City of New York

55 A.D.3d 485, 868 N.Y.S.2d 169

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 7, 2007, which granted plaintiffs motion for partial summary judgment on the issue of liability on his cause of action under Labor Law § 240 (1) as against defendants City of New York and City of New York Department of Design and Construction, and denied such motion as against defendant O’Brien Kreitsberg, Inc. (OBK), unanimously affirmed, without costs.

Defendants’ failure to provide adequate safety devices and to properly secure the ladder was a contributing cause of the accident. Plaintiff’s conduct, at most, constituted comparative negligence, which is not a defense under Labor Law § 240 (1) (see Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173 [2004]; Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289 [2002]).

Regarding the court’s denial of plaintiffs motion for partial summary judgment as against OBK, the “construction manager” for the project, plaintiff did not cross-appeal from this ruling (see CPLR 5515). In any event, given the existence of factual issues concerning the scope of the construction manager’s oversight and control of the work, the motion court’s ruling was appropriate (see e.g. Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]).

We have considered defendants’ remaining contentions, including that the motion was premature in light of the need for further discovery, and find them unavailing. Plaintiff’s request to strike material from the record on appeal is denied. Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ.