| Collins v West 13th St. Owners Corp. |
| 2009 NY Slip Op 05375 [63 AD3d 621] |
| June 30, 2009 |
| Appellate Division, First Department |
| Noel Collins, Respondent, v West 13th Street OwnersCorp. et al., Appellants, et al., Defendant. (And Other Actions.) |
—[*1] Tarshis & Hammerman, LLP, New York (Carol R. Finocchio of counsel), for Cinema Four,Inc., appellant. Bisogno & Meyerson, Brooklyn (Elizabeth Mark Meyerson of counsel), forrespondent.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 30, 2008,which, insofar as appealed from, denied the motion of defendant Cinema Four, Inc. and the crossmotion of West 13th Street Owners Corp. for summary judgment dismissing plaintiffs' LaborLaw § 240 (1) and § 241 (6) causes of action, and granted plaintiff partial summaryjudgment on the issue of liability on his section 240 (1) claim, unanimously affirmed, withoutcosts.
Upon a search of the record, partial summary judgment in favor of plaintiff is appropriate inthis action where plaintiff was injured when, while installing acoustical ceiling tile in a movietheatre owned by West 13th and leased by Cinema Four, he fell from a makeshift scaffold that heconstructed and which consisted of resting one end of a piece of plywood on top of an A-frameladder and resting the other end on the top of a knee wall that was the same height as the ladder.The work being performed was an activity within the ambit of section 240 (1), and the recordshows that he was not provided with an appropriate safety device to perform such work (seeCasabianca v Port Auth. of N.Y. & N.J., 237 AD2d 112 [1997]).
We reject defendants' argument that plaintiff was the sole proximate cause of his injuries. Inorder for a plaintiff to be considered the sole proximate cause of his injuries, it must be shownthat an appropriate safety device was available, but that plaintiff chose not to use the device(see Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]). Here, plaintiff testifiedthat he fell from an unsecured scaffold and that there were no appropriate safety devicesavailable on site. Defendants relied on, inter alia, the affidavit of a principal of plaintiff'semployer, who said that [*2]plaintiff had available to him thematerials necessary to construct a proper scaffold, including wood boards and planks of variouslengths, as well as the tools necessary to modify the boards and planks to the required length.The motion court properly recognized that defendants' argument, that the onus is on plaintiff toconstruct an adequate safety device, using assorted materials on site which are not themselvesadequate safety devices but which may be used to construct a safety device, improperly shiftedto the worker the responsibility for creating a proper safety device.
Contrary to West 13th Street's contention, it is an "owner" for purposes of section 240 (1)."[S]o long as a violation of the statute proximately results in injury, the owner's lack of notice orcontrol over the work is not conclusive—this is precisely what is meant by absolute orstrict liability in this context" (Sanatass v Consolidated Inv. Co., Inc., 10 NY3d333, 340 [2008]).
We have considered defendants' remaining contentions, including that plaintiff could notrely on his unsigned deposition transcript in support of his cross motion, and find themunavailing. Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and Freedman, JJ.