In MALONEY v.J.W. PFEIL & COMPANY, INC.,et al., Appellate Division, 3rd Department, decided May 19, 2011, plaintiff, while standing on the top cap of a six-foot ladder installing sheetrock on an overhead soffit, fell and sustained injury. Plaintiff moved for partial summary judgment on his Labor Law § 240 (1) cause of action and defendants cross-moved for summary judgment dismissing the complaint. Given the facts as set forth by the Court it is difficult to understand why plaintiff brought the motion. According to The Court plaintiff testified as follows;
“In his deposition testimony, plaintiff admitted knowing that there were other safety devices in other locations in the building better suited for the type of work he was about to perform and that he had routinely used these devices while working on this project. He acknowledged that a baker’s scaffold was in his immediate work area and, at the time of his fall, was being used by n associate working with him. Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it of his fall, was being used by an associate working with him.
Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it contained a written warning never to stand on the top cap of the ladder when using it. Given this proof, we find that defendants made a prima facie showing that Labor Law § 240 (1) was not violated (see id. at 917; see also Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071 ), shifting the burden to plaintiff to raise a triable issue of fact as to this claim.
Plaintiff testified that he tried to find a more appropriate safety device near where he was working and that none was available. However, he admitted that he confined his efforts in that regard to the second floor of the building and did not look in other areas of the work site for a device that would be more suitable for his work (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 555 ; Torres v Mazzone Admin. Group, Inc., 46 AD3d 1040, 1041 , lv denied 10 NY3d 706 ). In addition, plaintiff acknowledged that he chose the six-foot ladder not because he was ordered to do so or because he was under some time constraint within which he had to complete the job, but because, in his own words, ‘it was the quickest thing to grab.'”
This one was a no brainer and as we have previously commented demonstrates the importance of depositions and a knowledge of the law. It appears that plaintiff was ill prepared for his deposition and was obviously effectively cross-examined by an experienced defense attorney.