| Andro v City of New York |
| 2009 NY Slip Op 04173 [62 AD3d 919] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Timothy Andro, Respondent, v City of New York et al.,Appellants. |
—[*1] Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anamended order of the Supreme Court, Queens County (Flug, J.), dated March 27, 2008, whichgranted that branch of the plaintiff's motion which was for summary judgment on the issue ofliability on the cause of action to recover damages pursuant to Labor Law § 240 (1) and, ineffect, denied that branch of their cross motion which was for summary judgment dismissing thatcause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability on thecause of action to recover damages pursuant to Labor Law § 240 (1), and substitutingtherefor a provision denying that branch of the plaintiff's motion; as so modified, the order isaffirmed, with costs to the defendants, and the matter is remitted to the Supreme Court, QueensCounty, for a determination on the merits of those branches of the motion and cross motionwhich sought relief on the causes of action to recover damages pursuant to Labor Law§§ 200, 241 (b), and common-law negligence.
To prevail on a claim under Labor Law § 240 (1), a plaintiff must prove that thestatute was violated and that such violation was a proximate cause of the resulting injuries (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 287 [2003]). Here, in support of the branches of theirrespective motion and cross motion which were for summary judgment on the Labor Law§ 240 (1) cause of action, neither the plaintiff nor the defendants made a prima facieshowing of entitlement to judgment as a matter of law (see Bonilla v State of New York, 40 AD3d 673, 675 [2007]). Theplaintiff's testimony at both his examination pursuant to General Municipal Law § 50-hand at his deposition indicates that he took note of the condition of the ladder he was using priorto his accident, admitted there was nothing wrong with it, and raises questions of fact as towhether his failure to use safety devices available at the work site, furnished by his employer,constituted the sole proximate cause of his accident (see Alvarez v Prospect Hosp., 68NY2d 320 [1986]; Bonilla v State of New York, 40 AD3d at 674-675).[*2]
In light of our determination, the matter must be remittedto the Supreme Court, Queens County, to determine on the merits those branches of the motionand cross motion for relief on the causes of action to recover damages pursuant to Labor Law§§ 200, 241 (b), and common-law negligence, which had been denied by theSupreme Court as academic. Miller, J.P., Angiolillo, Eng and Austin, JJ., concur.