| Ritzer v 6 E. 43rd St. Corp. |
| 2008 NY Slip Op 10204 [57 AD3d 412] |
| December 30, 2008 |
| Appellate Division, First Department |
| Jeffrey Ritzer, Appellant, v 6 East 43rd Street Corp. et al.,Respondents. |
—[*1] Goldberg Segalla LLP, White Plains (William G. Kelly of counsel), forrespondents.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 4, 2007,which denied plaintiff's motion for partial summary judgment on the issue of liability underLabor Law § 240 (1) and § 241 (6), unanimously reversed, on the law, without costs,and the motion granted.
Plaintiff was injured when he fell from a scaffold. In order to defeat summary judgment,defendants had to establish that plaintiff had adequate safety devices available, that he was awareof that availability and the expectation that he would use them, that for no good reason he chosenot to, and that had he not made that choice he would not have been injured (Kosavick v Tishman Constr. Corp. ofN.Y., 50 AD3d 287, 288 [2008]). Defendants have not offered an alternative theory asto the cause of injury. They have not alleged or demonstrated that plaintiff was solely responsiblefor his own injuries or was furnished with protective devices, or that the scaffold had safety railsor a locking mechanism free of defects to prevent the apparatus from slipping. All they haveoffered is speculation that the accident might have occurred in some other manner (see Pichardo v Urban RenaissanceCollaboration Ltd. Partnership, 51 AD3d 472, 473 [2008]). In short, plaintiff wassubjected to an elevation-related risk while working, and the failure to provide him with adequatesafety devices was a proximate cause of his injuries (see Striegel v Hillcrest Hgts. Dev.Corp., 100 NY2d 974, 978 [2003]). Without a genuine question of fact, plaintiff is entitled tothe protection of Labor Law § 240 (1) as a matter of law.
As for the cause of action predicated on Industrial Code (12 NYCRR) § 23-5.18 (b)and (e), mandating that manually propelled, mobile scaffolds be equipped with a safety railingand properly designed casters, this regulation is sufficiently specific to support a claim undersection 241 (6) (see Vergara v SS 133W. 21, LLC, 21 AD3d 279, 281 [2005]). It is undisputed that the scaffold had no safetyrailings and was equipped with only two locking devices for the four wheels of the scaffold.Since defendants never raised a triable question of fact as to plaintiff's prima facie showing under12 NYCRR 23-5.18, plaintiff should also have been afforded partial summary judgment on hisclaim under section 241 (6). Concur—Lippman, P.J., Gonzalez, Nardelli, Buckley andAcosta, JJ. [See 2007 NY Slip Op 33188(U).]