First Department Holds Plaintiff's Use of A-frame Ladder In Closed Position Not Sole Proximate Cause

In Fernandez v. 213 E. 63rd St. LLC, the First Department affirmed partial summary judgment on liability in favor of plaintiff pursuant to Labor Law 240(1), where plaintiff testified that the A-frame ladder he was using "kicked out," causing him to fall.  The Court further found that, even if the defendants had presented sufficient evidence to create a question of fact as to whether the plaintiff was using the ladder in a closed position, such evidence was not sufficient to defeat the plaintiff's motion.  More specifically, the Court found that the defendants had failed to demonstrate that the plaintiff was instructed to not use the ladder in that manner (which is generally only relevant to a "recalcitrant worker" defense).