| Ewing v Brunner Intl., Inc. |
| 2009 NY Slip Op 02046 [60 AD3d 1323] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Harold E. Ewing, Sr., Appellant, v Brunner International, Inc., etal., Respondents. |
—[*1] Gibson, McAskill & Crosby LLP, Buffalo (Robert E. Scott of counsel), fordefendant-respondent Brunner International, Inc.
Appeal from an order of the Supreme Court, Orleans County (James P. Punch, A.J.), enteredJanuary 17, 2008 in a personal injury action. The order denied the motion of plaintiff for partialsummary judgment against defendant Brunner International, Inc.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the first affirmative defense of defendant BrunnerInternational, Inc. is dismissed.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained when a portion of the flat concrete roof on which hewas standing collapsed, causing him to fall. We agree with plaintiff that Supreme Court erred indenying his motion seeking partial summary judgment on liability against Brunner International,Inc. (defendant) under Labor Law § 240 (1) as well as dismissal of the affirmative defensealleging that plaintiff's culpable conduct contributed in whole or in part to the accident. Plaintiffmet his initial burden inasmuch as "[t]he collapse of a work site itself 'constitute[s] a prima facieviolation of Labor Law § 240 (1)' " (Bradford v State of New York, 17 AD3d 995, 997 [2005], quotingRichardson v Matarese, 206 AD2d 353, 353 [1994]), and defendant failed to raise atriable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries(cf. Tronolone v Praxair, Inc., 22AD3d 1031, 1033 [2005]; see generally Felker v Corning Inc., 90 NY2d 219, 224[1997]). In support of his motion, plaintiff submitted his deposition testimony in which hetestified that it was the general practice on the work site to wear safety harnesses only when"tearing off" asphalt or working on "bad concrete" and that, when he fell, he was not tearing offasphalt and all but four inches of the concrete decking requiring replacement had been removed.Defendant failed to submit any evidence raising a triable issue of fact whether plaintiff, aforeman on the roofing project, " 'knew or should have known' [that he was expected to wear asafety harness] . . . ; 'that he chose for no good reason not to do so; and that had henot made that choice he would not have been injured' " (Ganger v Anthony Cimato/ACP Partnership, 53 AD3d 1051, 1053[2008]; cf. Cahill v Triborough Bridge& Tunnel Auth., 4 NY3d 35, 40 [2004]). Present—Scudder, P.J., Hurlbutt,Peradotto and Gorski, JJ.