Justice Saliann Scarpulla
Electrician Cu sought damages for personal injuries he allegedly sustained after falling from a ladder. He moved for partial judgment on the issue of liability based on Labor Law §240(1). Cu alleged that as he descended the ladder, he stepped on the second rung, and it fell apart and broke causing him to fall back. He claimed defendants violated §240(1) as they failed to provide him proper protection to prevent harm directly flowing from the application of the force of gravity. Defendants argued there were triable issues of fact if Cu was the sole proximate cause of his accident, claiming he tampered with the ladder. Defendants submitted an affidavit from a mechanical engineer and a project manager who alleged the ladder was tampered with, suspecting Cu. The court stated while it found Cu made a prima facie showing the ladder he used collapsed, defendants raised triable issues of fact if Cu tampered with it, which was the sole cause of the accident. It denied Cu’s motion, finding affidavits of his co-workers as witnesses admissible noting defendants offered an excuse for failing to disclose them earlier.