| Gimeno v American Signature, Inc. |
| 2009 NY Slip Op 08646 [67 AD3d 1463] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| Donald Gimeno, Appellant-Respondent, v American Signature,Inc., Doing Business as Value-City Furniture, et al., Respondents, and Melco ConstructionServices, Inc., et al., Respondents-Appellants, et al., Defendant. |
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Appeal and cross appeal from an order of the Supreme Court, Erie County (John A.Michalek, J.), entered December 10, 2008 in a personal injury action. The order, inter alia,denied the motion of plaintiff for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting plaintiff's motion and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained while attaching plastic sheeting over scaffolding fromthe top of a building under renovation. Plaintiff performed his work from a platform attached to alull, a forklift-like device used to lift the platform. At the time of the accident, he was wearing aharness and lanyard, which he secured to the platform. The accident occurred when the platformdetached from the lull and fell approximately 15 feet to the ground, with plaintiff attached to it.
We agree with plaintiff that Supreme Court erred in denying his motion seeking partialsummary judgment on liability with respect to the Labor Law § 240 (1) claim againstAmerican Signature, Inc., doing business as Value-City Furniture, Melco Construction Services,Inc. (Melco), Midwest Interiors (Midwest) and Construction One (collectively, defendants), andwe [*2]therefore modify the order accordingly. "Plaintiff met hisinitial burden by establishing that his injury was proximately caused by the failure of a safetydevice to afford him proper protection from an elevation-related risk" (Raczka v Nichter Util.Constr. Co., 272 AD2d 874, 874 [2000]; see Guaman v Ginestri, 28 AD3d 517, 518[2006]). The evidence submitted by defendants in opposition to the motion establishing thatplaintiff himself attached the platform to the lull, without more, is insufficient to raise a triableissue of fact whether plaintiff's actions were the sole proximate cause of the accident (seeEvans v Syracuse Model Neighborhood Corp., 53 AD3d 1135, 1137 [2008]; Rudnik vBrogor Realty Corp., 45 AD3d 828, 829 [2007]; Woods v Design Ctr., LLC, 42AD3d 876, 877 [2007]). There is no evidence that plaintiff received any instruction concerningthe method of attaching the platform to the lull (see Ganger v Anthony Cimato/ACPPartnership, 53 AD3d 1051, 1053 [2008]; cf. Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 40 [2004]), or that "plaintiff, based on his training, prior practice, andcommon sense, knew or should have known" of a different method of attaching the platform tothe lull (Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426, 1427 [2007];see Ganger, 53 AD3d at 1053). In view of our determination with respect to plaintiff'sappeal, we reject the contention of Melco and Midwest on their cross appeal that the court erredin denying that part of their cross motion seeking summary judgment dismissing the Labor Law§ 240 (1) claim against them.
Finally, we note that plaintiff does not contend in his brief that the court erred in granting thecross motion of defendant-third-party plaintiff Admar Supply Co., Inc. seeking summaryjudgment dismissing the complaint against it or those parts of the cross motions of defendantsseeking summary judgment dismissing the Labor Law §§ 200 and 241 (6) andcommon-law negligence claims against them, and we thus deem any issues with respect theretoabandoned (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).Present—Scudder, P.J., Martoche, Smith, Carni and Green, JJ.