In Yu Xiu Deng v. A.J. Contr. Co. (255 AD2d 202, 255 A.D.2d 303, 680 N.Y.S.2d 223 [1st Dept 1998]), the First Department held that partial summary judgment was properly granted to a plaintiff who fell off a ladder, notwithstanding some discrepancies as to how the accident occurred.

"Whether the ladder on which plaintiff was working tipped as a result of plaintiff losing her balance when she lost control of the sheetrock she was handling, or, indeed, whether plaintiff fell off the ladder without it having tipped at all, are not material issues of fact. Plaintiff's negligence, if any, is of no consequence" (id.)

The Court further stated that "it is clear that the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the ladder, were provided" (id. at 202-203).