| Castillo v 62-25 30th Ave. Realty, LLC |
| 2008 NY Slip Op 00641 [47 AD3d 865] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Jose Castillo, Appellant, v 62-25 30th Avenue Realty,LLC, et al., Respondents. |
—[*1] Baxter, Smith, Tassan & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Queens County (Flug, J.), entered October 12, 2006, which, upon a juryverdict in favor of the defendants and against him, and upon an order of the same court datedMay 19, 2006, denying his motion pursuant to CPLR 4404 (a) to set aside the jury verdict and forjudgment as a matter of law on the issue of liability on the Labor Law § 240 (1) cause ofaction, is in favor of the defendants and against him, in effect, dismissing the Labor Law §240 (1) cause of action.
Ordered that the judgment is reversed, on the law, with costs, the Labor Law § 240 (1)cause of action is reinstated, the plaintiff's motion pursuant to CPLR 4404 (a) to set aside the juryverdict and for judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action is granted, and the matter is remitted to the Supreme Court, Queens County,for a trial on the issue of damages, and the order dated May 19, 2006 is modified accordingly.
The plaintiff, who was performing construction work in a building that was owned by thedefendant 62-25 30th Avenue Realty, LLC, and leased by the defendant Zahmel RestaurantSupply Corp., doing business as Zahner's Cash & Carry, was injured while removing large, heavymetal racks from a wall. The jury was presented with two versions of how the accident occurred.According to the deposition testimony of a coworker and eyewitness, which was read intoevidence at trial, the plaintiff fell from the elevated worksite when the metal rack he was workingon suddenly came loose and, after he hit the floor, the metal piece he had been handling fell andhit him across the leg. In contrast, after initially stating at his deposition that he had norecollection of how he got hurt, the plaintiff testified at his deposition that he was standing underthe scaffold when a piece of the [*2]scaffold fell and hit him inthe head. The plaintiff's deposition testimony was also read into evidence at trial.
The jury found that there was a violation of Labor Law § 240 (1), but that the violationwas not a proximate cause of the plaintiff's injuries. However, when viewing the evidence in thelight most favorable to the defendants (see Szczerbiak v Pilat, 90 NY2d 553 [1997]),under either scenario presented to the jury, there was no rational basis for the jury to concludethat a violation of Labor Law § 240 (1) was not the proximate cause of the plaintiff'sinjuries (see Felker v Corning Inc., 90 NY2d 219, 224 [1997]; Zimmer v ChemungCounty Performing Arts, 65 NY2d 513, 518 [1985]).
The defendants concede that a fall from a scaffold would be covered by Labor Law §240 (1). There is no merit to their suggestion that the jury could have concluded that theplaintiff's handling of the metal rack caused him to fall, because "contributory negligence is not adefense to a violation of section 240" (La Lima v Epstein, 143 AD2d 886, 888 [1988][internal quotation marks and citations omitted]).
The second scenario before the jury would also be covered by Labor Law § 240 (1),which "applies to both 'falling worker' and 'falling object' cases" (Narducci v Manhasset BayAssoc., 96 NY2d 259, 267-268 [2001]). This Court has held that "[t]he statutory requirementthat workers be provided with proper protection extends not only to the hazards of buildingmaterials falling," but to the hazards of defective parts of safety devices "falling from an elevatedlevel to the ground" (Jiron v China Buddhist Assn., 266 AD2d 347, 349 [1999] [injurycaused by a falling piece of a hoist would be covered by the statute]; see Smith v JesusPeople, 113 AD2d 980, 983 [1985] [injury caused by a plank falling from a scaffold wascovered by the statute]). Moreover, if the accident was caused by a piece of the scaffold fallingfrom a height of 10 or 12 feet, "proper construction . . . of the [scaffold], which isone of the safety devices enumerated in the statute, could have prevented it" (Jiron v ChinaBuddhist Assn., 266 AD2d at 349).
Other than the above two scenarios, and the plaintiff's trial testimony that he did notremember whether he was on top of or underneath the scaffold at the time of the accident, noother evidence was before the jury. Since the defendants failed, under either scenario, to presentevidence that their violation of Labor Law § 240 (1) was not a proximate cause of theplaintiff's injuries, the Supreme Court should have granted the plaintiff's motion to set aside theverdict and for judgment as a matter of law on the issue of liability pursuant to Labor Law§ 240 (1).
The plaintiff's remaining contentions need not be reached in light of our determination.Mastro, J.P., Santucci, Covello and Angiolillo, JJ., concur.