| Chlebowski v Esber |
| 2009 NY Slip Op 00325 [58 AD3d 662] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Bogdan Chlebowski, Respondent, v James Esber et al.,Appellants. (And a Third-Party Action.) |
—[*1] Dinkes & Schwitzer, P.C., New York, N.Y. (Beth Diamond and Raymond J. Mollica ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), datedJanuary 28, 2008, as denied that branch of their motion which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 240 (1) and granted theplaintiff's cross motion for summary judgment on the issue of liability on that cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was employed by the third-party defendant New York Store Fronts, Inc., acompany hired by the defendants to remove and replace imitation brick on the exterior of abuilding they owned. While working at the building, the plaintiff was standing on a closed ladderon top of a scaffold when the scaffold suddenly moved, causing the plaintiff to fall 10 feet to theground. The defendants had not provided the plaintiff with any safety devices.
Labor Law § 240 (1) provides, in pertinent part, "[a]ll contractors and owners andtheir agents . . . in the erection, demolition, repairing, altering, painting, cleaning orpointing of a building or structure shall furnish or erect, or cause to be furnished or erected forthe performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,braces, irons, ropes, and other [*2]devices which shall be soconstructed, placed and operated as to give proper protection to a person so employed." "In orderto prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establish that thestatute was violated and that the violation was a proximate cause of his or her injuries" (Rudnik v Brogor Realty Corp., 45AD3d 828, 829 [2007]; see Cahillv Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280 [2003]). Labor Law § 240 (1) "creates a liability that isstrict, or absolute, in two senses: the duty it imposes is nondelegable, and thus contractors andowners are liable under the statute whether or not they supervise or control the work; and wherean accident is caused by a violation of the statute, the plaintiff's own negligence does not furnisha defense" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 39). There is noliability "where a plaintiff's own actions are the sole proximate cause of the accident"(id.).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law bydemonstrating that the defendants failed to provide him with any safety devices, and that theirviolation of Labor Law § 240 (1) was a proximate cause of his injuries (see Rudnik v Brogor Realty Corp., 45AD3d 828 [2007]; Guaman v NewSprout Presbyt. Church of N.Y., 33 AD3d 758 [2006]; Lopez v Melidis, 31 AD3d 351[2006]; Tavarez v Weissman, 297 AD2d 245 [2002]). In opposition, the defendantsfailed to raise a triable issue of fact. While it is possible that the plaintiff was negligent in placinga closed A-frame ladder against the wall on top of the scaffold, his conduct cannot be consideredthe sole proximate cause of his injuries (see Rudnik v Brogor Realty Corp., 45 AD3d at829; O'Connor v Enright Marble & TileCorp., 22 AD3d 548 [2005]; Torres v Monroe Coll., 12 AD3d 261 [2004]; Tavarez vWeissman, 297 AD2d 245 [2002]).
The defendants' remaining contentions are without merit. Rivera, J.P., Santucci, Carni andDickerson, JJ., concur. [See 18 Misc 3d 819 (2008).]