| Smith v Picone Constr. Corp. |
| 2009 NY Slip Op 04833 [63 AD3d 1716] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| Cedric Smith et al., Respondents, v Picone ConstructionCorporation, Appellant. |
—[*1] Collins & Maxwell, L.L.P., Buffalo (Alan D. Voos of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), enteredOctober 16, 2008 in a personal injury action. The order granted plaintiffs' motion for partialsummary judgment on the issue of liability with respect to the Labor Law § 240 (1) claimand denied defendant's cross motion for summary judgment dismissing that claim.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries allegedly sustained by Cedric Smith (plaintiff) when he fell whilecarrying bricks up a ladder at a construction site. Defendant appeals from an order grantingplaintiffs' motion for partial summary judgment on the issue of liability with respect to the LaborLaw § 240 (1) claim and denying defendant's cross motion for partial summary judgmentdismissing that claim. We affirm.
We conclude that plaintiffs met their initial burden on the motion by establishing that "theabsence of . . . a safety device was the proximate cause of [plaintiff's] injuries"(Felker v Corning Inc., 90 NY2d 219, 224 [1997]; see Baum v Ciminelli-CowperCo., 300 AD2d 1028, 1029 [2002]), and that "defendant failed to raise a triable issue of factwhether the conduct of plaintiff was the sole proximate cause of his injuries" (Ewing v Brunner Intl., Inc., 60 AD3d1323, 1323 [2009]; see Ganger vAnthony Cimato/ACP Partnership, 53 AD3d 1051, 1052-1053 [2008]; cf. Tronolone v Praxair, Inc., 22 AD3d1031, 1033 [2005]). In opposition to the motion, defendant contended that plaintiff shouldhave used an outrigger system to raise the bricks to the level at which the masons were working,rather than carry them up the ladder by hand. Defendant failed, however, to establish that theoutrigger system was installed on the scaffold on the day of plaintiff's injury. Defendant alsofailed to raise a triable issue of fact "whether plaintiff, based on his training, prior practice, andcommon sense, knew or should have known" not to carry bricks by hand up the ladder (Mulcaire v Buffalo Structural Steel Constr.Corp., 45 AD3d 1426, 1427 [2007]). We thus conclude that defendant failed to submitevidence that would permit a jury to find "that plaintiff had [an] adequate safety device[ ] [*2]available; that he knew both that [it was] available and that he wasexpected to use [it]; that he chose for no good reason not to do so; and that had he not made thatchoice he would not have been injured" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40[2004]). Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Centra, JJ.