| Gizowski v State of New York |
| 2009 NY Slip Op 06899 [66 AD3d 1348] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Stanley A. Gizowski, Respondent-Appellant, v State of New York,Appellant-Respondent. (Claim No. 112634.) |
—[*1] Brown Chiari LLP, Lancaster (Samuel J. Capizzi of counsel), forclaimant-respondent-appellant.
Appeal and cross appeal from an order of the Court of Claims (Jeremiah J. Moriarty, III, J.),entered July 10, 2008 in a personal injury action. The order denied claimant's motion for partialsummary judgment and granted in part and denied in part defendant's cross motion for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion and as modified the order is affirmed without costs.
Memorandum: Claimant commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained when he fell from a scaffold. The accident occurredwhen a portion of the ceiling he was demolishing collapsed and struck a corner of the scaffold,causing claimant to be thrown into the air and to fall to the ground. Addressing first defendant'sappeal, we reject the contention of defendant that the Court of Claims erred in denying that partof its cross motion seeking summary judgment dismissing the Labor Law § 240 (1) claim.We further conclude that the court properly denied that part of defendant's cross motion seekingsummary judgment dismissing the Labor Law § 241 (6) claim insofar as it is premised ondefendant's alleged failure to comply with 12 NYCRR 23-3.3 and 23-5.1. The court properlyconcluded that defendant was not prejudiced by claimant's delay in identifying the allegedviolation of those sections of the Industrial Code (see Ellis v J.M.G., Inc., 31 AD3d 1220 [2006]; Harris vRochester Gas & Elec. Corp., 11 AD3d 1032, 1033 [2004]). In any event, weconclude on the merits that defendant failed to meet its burden of establishing its entitlement tojudgment as a matter of law with respect to its alleged violation of those sections (see Clappv State of New York [appeal No. 2], 19 AD3d 1113 [2005]).
We agree with claimant on his cross appeal, however, that the court erred in denyinghis motion seeking partial summary judgment on liability with respect to the Labor Law §240 (1) claim, and we therefore modify the order accordingly. Claimant met his "initial burdenof [*2]establishing as a matter of law that the injury was causedby the lack of enumerated safety devices, the proper placement and operation of which wouldhave prevented the [ceiling] from falling on [the scaffold] and [claimant] from falling off the[scaffold]" (Sniadecki v Westfield Cent. School Dist., 272 AD2d 955 [2000]), anddefendant failed to raise a triable issue of fact whether claimant's conduct was the sole proximatecause of the accident (see Evans vSyracuse Model Neighborhood Corp., 53 AD3d 1135, 1137 [2008]; Whalen v ExxonMobil Oil Corp., 50AD3d 1553, 1554 [2008]). Even assuming, arguendo, that defendant is correct that claimantwas negligent in his placement of the scaffold and his removal of bracing from the portion of theceiling that collapsed, we conclude that those actions "render him [merely] contributorilynegligent, a defense unavailable under [section 240 (1)]" (Morin v Machnick Bldrs., 4 AD3d 668, 670 [2004]; see Ball v Cascade Tissue Group-N.Y.,Inc., 36 AD3d 1187, 1189 [2007]). "Because [claimant] established that a statutoryviolation was a proximate cause of [his] injury, [he] 'cannot be solely to blame for it' " (Woods v Design Ctr., LLC, 42 AD3d876, 877 [2007], quoting Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]).Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.