Mayancela v. Almat Realty Development, LLC

303 A.D.2d 207, 756 N.Y.S.2d 548, 2003 N.Y. App. Div. LEXIS 2387

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 2, 2002, which, to the extent appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing plaintiffs Labor Law § 240 (1) claim, and denied plaintiff s cross motion for summary judgment as to liability upon the same claim, unanimously affirmed, without costs.

In view of plaintiffs admission in his deposition testimony that for no particular reason he misused the A-frame ladder from which he fell despite specific, repeated and recent instructions from his employer respecting the ladder’s proper and improper use, defendant’s motion, based on the recalcitrant worker ^defense, for summary judgment dismissing plaintiffs Labor Law § 240 (1) claim was properly granted (cf. Jamil v Concourse Enters., 293 AD2d 271, 273 [2002]). Plaintiffs attempt to create a triable issue through the submission of a self-serving, postdeposition affidavit contradicting his prior testimony was properly rejected by the motion court (see Perez v Bronx Park S. Assoc., 285 AD2d 402, 404 [2001], lv denied 97 NY2d 610 [2002]). Concur — Nardelli, J.P., Buckley, Rosenberger and Marlow, JJ.