| Gittleson v Cool Wind Ventilation Corp. |
| 2007 NY Slip Op 10516 [46 AD3d 855] |
| December 26, 2007 |
| Appellate Division, Second Department |
| Robert Gittleson et al., Appellants, v Cool WindVentilation Corp. et al., Respondents. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Joel M. Simonof counsel), for respondent Cool Wind Ventilation Corp. Tromello, McDonnell & Kehoe, Melville, N.Y. (James S. Kehoe of counsel), for respondent37th Avenue Associates.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Dorsa, J.), entered July 21, 2006, as amended by aso-ordered stipulation dated September 20, 2006, which granted the motion of the defendant 37thAvenue Associates and the separate motion of the defendant Cool Wind Ventilation Corp., interalia, for summary judgment dismissing the complaint insofar as asserted against them,respectively.
Ordered that the order, as amended, is affirmed, with one bill of costs.
To recover on a cause of action pursuant to Labor Law § 240 (1), a plaintiff mustdemonstrate that there was a violation of the statute, and that the violation was a proximate causeof the accident (see Robinson v EastMed. Ctr., LP, 6 NY3d 550, 553-555 [2006]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287[2003]; Marin v Levin Props., LP,28 AD3d 525 [2006]). A plaintiff cannot recover under Labor Law § 240 (1) if hisor her actions were the sole proximate cause of the accident (see Robinson v East Med. Ctr.,LP, 6 NY3d at 553-555; Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]; Marin v Levin Props., LP, 28 AD3d525 [2006]). Here, the two defendants each made a prima facie showing that the plaintiffRobert Gittleson (hereinafter the [*2]injured plaintiff) was injuredin an accident that was not proximately caused by a violation of Labor Law § 240 (1).Rather, it was caused solely by the actions of the injured plaintiff in choosing to use animproperly-placed, unopened, and unsecured ladder rather than the one he had brought and usedearlier that day. The evidence submitted in opposition failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted those branches of the motion of the defendant37th Avenue Associates and the separate motion of the defendant Cool Wind Ventilation Corp.which were for summary judgment dismissing the Labor Law § 240 (1) cause of actioninsofar as asserted against each of them (see Blake v Neighborhood Hous. Servs. of N.Y.City, 1 NY3d at 289-290 n 8; Negron v City of New York, 22 AD3d 546, 547 [2005]; Plass v Solotoff, 5 AD3d 365[2004]; Ross v Threepees Realty Corp., 258 AD2d 575 [1999]).
The defendants respectively established their prima facie entitlement to judgment as a matterof law dismissing the cause of action to recover damages under Labor Law § 241 (6)insofar as asserted against each of them on the ground that the alleged violations of Labor Law§ 241 (6) were not a proximate cause of the accident, and that the sole proximate cause ofthe accident was the injured plaintiff's own actions. In opposition, the plaintiffs failed to raise atriable issue of fact. Therefore, the Supreme Court properly dismissed the Labor Law §241 (6) cause of action.
Similarly, the defendants established their prima facie entitlement to judgment as a matter oflaw dismissing the Labor Law § 200 and common-law negligence causes of action. Thedefendants established that the injured plaintiff's injury arose out of his method of operation, andthey had no authority to supervise or control the work (see Lombardi v Stout, 80 NY2d290 [1992]; DeMattia v Van Westerhaut Mola Social & Sport Club, 204 AD2d 594, 595[1994]; Vilardi v Berley, 201 AD2d 641 [1994]). Therefore, no liability attached to themunder Labor Law § 200 or common-law negligence. In opposition, the plaintiffs failed toraise a triable issue of fact. Accordingly, the Supreme Court properly dismissed the Labor Law§ 200 and common-law negligence causes of action. Schmidt, J.P., Rivera, Florio andBalkin, JJ., concur. [See 12 Misc 3d 1195(A), 2006 NY Slip Op 51576(U).]