In Miro v. Plaza Constr. Corp., the plaintiff injured himself after he slipped off a ladder that was partially covered with sprayed-on fireproofing material.  He alleged that the fireproofing material caused him to lose his footing.  He claimed that he complained about the ladder’s condition to the  building’s superintendent, but the superintendent just shrugged.  At his deposition, the plaintiff testified that if a ladder was "in bad
shape, they (i.e., his employer, Consolidated Electric) get rid of it
and get you a new one"; that Consolidated Electric was "pretty good"
about doing this; that workers would report a problem with a ladder to
Consolidated Electric’s "stockroom," which would send a replacement
ladder to the job site; and – contrary to the dissent’s assertion that
"there is no proof in this record that any replacement ladder was
available on site" – that Consolidated Electric had "a lot of ladders"
available for use on its projects. The plaintiff also testified that "[i]f
the journeyman sees a ladder, if it’s in bad shape, he won’t use it."

Relying on the Court of Appeals’ decisions in Robinson v. E. Med. Ctr. LP and Cahill v. Triborough Bridge & Tunnel Auth., the Majority for the Appellate Division, First Department held that the plaintiff’s choice of using the ladder even though he knew he could get a safer one was the sole proximate cause of his accident.  The Majority also rejected the Dissenting Justice’s interpretation of the Robinson holding that it required alternate safety equipment to be on site.  The Majority held that Robinson merely held that the alternate safety equipment need be readily available.

It will be interesting to see if  this issue on this appeal makes it to the New York Court of Appeals.  In the face of a lot of recent Court of Appeals decisions on the issue, the parties might be stuck with the First Department duking this one out.