judgment on the 240(1) claim, which was eventually granted.
But this is easy, remember? So in reversing Supreme Court and reinstating the complaint, the Second Dep’t reminds us that a plaintiff’s own negligence will only relieve a defendant of liability under 240(1) where that negligence was the sole cause of the injury. In this case, plaintiff had the choice of using the lift or the ladder in his discretion, depending on the height of the work, “and the ladder was high enough for him to retrieve his tool pouch.” One could not say, as a matter of law, that plaintiff was negligent in choosing one over the other.
Well, you self-doubters might say, wasn’t plaintiff a recalcitrant worker, failing to use the safer device rather than the ladder? Nay, nay. The burden was defendants’ and “they failed to eliminate all issues of fact, inter alia, as to whether the injured plaintiff knew that he was expected to use the lift or a (specific ladder), and not the ladder inside the stockroom, and whether the injured plaintiff had a good reason for using the ladder from which he fell.”
We told you this was easy, didn’t we? Oh, and in case you’re being clever, those same principles bar summary judgment for plaintiff as well: “[T]riable issues of fact.”