In Bradley vIBEX Construction, et al. decided June 26th, 2008, The First Dept. reversed the lower Court’s decision denying plaintiffs’ motion to set aside a verdict for defendants and granted the motion and directed judgment be entered in favor of plaintiffs on the issue of liability pursuant to § 240(1), and remanded for a trial on damages and apportionment of fault among defendants.
The Court held that plaintiffs’ motion for partial summary judgment was properly denied. It further held the denial of plaintiffs’ motion for a directed verdict on the issue of liability was proper as there was an issue of fact as to whether the alleged violation of § 240(1) proximately caused his accident. However, in granting plaintiffs’ motion to set aside the verdict The Court held;
“However, the motion court improperly denied plaintiffs’ posttrial motion to set aside the verdict and for judgment notwithstanding the verdict. Since the jury determined that plaintiff worker fell off the ladder, it could not have reasonably concluded, in light of the evidence, that the ladder was placed and used so as to give him proper protection in the performance of his work. Other than the accident report, which the jury clearly rejected, defendants and second third-party defendant failed to present any evidence controverting plaintiffs’ version of the accident, i.e., that the ladder had slipped on the plastic-covered floor. Furthermore, there was no evidence to suggest that plaintiff worker’s own actions were the sole proximate cause of his injury (see Bonanno v Port Auth. of N.Y. & N.J., 298 AD2d 269 ).”