| Triola v City of New York |
| 2009 NY Slip Op 04225 [62 AD3d 984] |
| May 26, 2009 |
| Appellate Division, Second Department |
| James Triola et al., Respondents, v City of New York etal., Appellants. |
—[*1] Grey & Grey, LLP, Farmingdale, N.Y. (Sherman B. Kerner of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Richmond County (Aliotta, J.), dated May 30, 2008, which grantedthe plaintiffs' motion for summary judgment on the issue of liability on the cause of actionalleging a violation of Labor Law § 240 (1).
Ordered that the order is affirmed, with costs.
The injured plaintiff, James Triola (hereinafter the plaintiff), alleges that, on October 16,2007, while employed as a laborer at the South Wharf extension construction project in StatenIsland, he sustained injuries as a result of the defendants' violation of Labor Law § 240 (1).The plaintiff had been assigned the task of cleaning out sand inside steel tube pilings, whichmeasured approximately three feet in diameter, and were embedded deep into the river bed of theArthur Kill. To reach the work area, the plaintiff was required to walk out on wooden plankscaffolds and onto precast concrete beams set on the pilings at differing heights, from whichtightly-packed shafts of hooked steel reinforcing bar (hereinafter rebar) protruded at variousheights. Prior to beginning his task, the plaintiff had been provided with a life preserver, but notwith any device to help him negotiate the height differentials between the various precastconcrete beams that he had to traverse to reach the pilings he was assigned to clean. The plaintiffallegedly tore his left bicep tendon when he attempted to lower himself from one concrete beamto the next, and caught his glove on a piece of rebar, which left him dangling 6 to 12 inchesabove the next concrete beam.
Thereafter, the plaintiff, with his then-wife suing derivatively, commenced the instant actionto recover damages for personal injuries. After joinder of issue and discovery, the plaintiffsmoved for summary judgment on the issue of liability on the cause of action alleging a violationof Labor Law § 240 (1), asserting that the defendants were liable as a matter of law fortheir failure to provide the plaintiff with any safety equipment protecting him from the risksinherent to the elevated work site. The defendants opposed the motion on the ground that thehazard in this case was not elevation-related, and, thus, that Labor Law § 240 (1) wasinapplicable. The defendants further contended that the plaintiff caused his own injuries byattempting to jump down from one concrete beam to another. The Supreme Court granted theplaintiffs' motion. The defendants appeal and we affirm.
Contrary to the defendants' contention, the plaintiff was engaged in the type of activity [*2]protected by Labor Law § 240 (1) since his work involved anelevation-related risk that exposed him to gravity-related hazards. In particular, the plaintiff wasworking upon a pier that was a raised surface that was itself further elevated above the river byprecast concrete beams of varying heights (see Striegel v Hillcrest Hgts. Dev. Corp., 100NY2d 974, 978 [2003]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501[1993]; Dooley v Peerless Importers,Inc., 42 AD3d 199, 203-204 [2007]; cf. Rocovich v Consolidated Edison Co.,78 NY2d 509, 514 [1991]).
Further, the plaintiffs established their prima facie entitlement to judgment as a matter of lawon the issue of liability on the cause of action alleging a violation of Labor Law § 240 (1)with evidence that the plaintiff was not provided with any adequate or appropriate safetydevices, and that such failure was the proximate cause of his injuries (see Zimmer vChemung County Performing Arts, 65 NY2d 513, 523 [1985]; Cavanagh v Mega Contr., Inc., 34AD3d 411 [2006]; Reinoso vOrnstein Layton Mgt., Inc., 19 AD3d 678, 678 [2005]; Danielewski v Kenyon Realty Co., 2AD3d 666, 667 [2003]; Taeschner v M & M Restorations, 295 AD2d 598, 599[2002]; Segarra v All Boroughs Demolition & Removal, 284 AD2d 321, 322 [2001]; cf. Capolino v Judlau Contr., Inc., 46AD3d 733, 734 [2007]). Moreover, where, as here, a violation of Labor Law § 240 (1)is a proximate cause of an accident, the worker's conduct, of necessity, cannot be deemed thesole proximate cause (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290-291 [2003]; Valensisi v Greens at Half Hollow,LLC, 33 AD3d 693, 696 [2006]).
In opposition to the plaintiffs' prima facie showing of entitlement to judgment as a matter oflaw, the defendants failed to raise a triable issue of fact. Accordingly, the Supreme Courtproperly granted the plaintiffs' motion for summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1). Mastro, J.P., Dickerson, Belenand Chambers, JJ., concur.