| Singh v City of New York |
| 2009 NY Slip Op 09645 [68 AD3d 1095] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Harminder Singh et al., Appellants, v City of New York etal., Respondents. (And Another Title.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andCheryl Payer of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Miller, J.), datedSeptember 18, 2008, as denied those branches of their motion which were for summary judgmenton the issue of liability on their causes of action pursuant to Labor Law § 240 (1) and§ 241 (6).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the plaintffs' motion which were for summary judgment on the issue of liability ontheir causes of action pursuant to Labor Law § 240 (1) and § 241 (6) are granted.
The plaintiff Harminder Singh (hereinafter the injured plaintiff) allegedly was injured whenhe was cutting down a 16-foot-high fence while standing on the 10-foot rung of an extensionladder at a construction site within a New York City playground. The accident occurred on aSunday. The plaintiffs commenced this action, alleging, inter alia, violations of Labor Law§§ 240 and 241, and moved for summary judgment on the issue of liability. TheSupreme Court, among other things, denied the plaintiffs' motion.
In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establishthat the statute was violated and that the violation was a proximate cause of his or her injuries(see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]; Camlicav Hansson, 40 AD3d 796 [2007]). To recover under Labor Law § 241 (6), a plaintiffmust establish the violation, in connection with construction, demolition, or excavation, of anIndustrial Code provision which sets forth specific, applicable safety standards (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505 [1993]; Weingarten v WindsorOwners Corp., 5 AD3d 674, 677 [2004]). To receive the protections of Labor Law§§ 240 and 241, an employee must show that "he [or she] was both permitted orsuffered to work on a building or structure and that he was hired by someone, be it owner,contractor or their agent" (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970,971 [1979]; see Haque v Crown Hgts. NRP Assoc., LP, 33 AD3d 864 [2006]; Morrav White, 276 AD2d 536, 537 [2000]).[*2]
The Supreme Court incorrectly denied those branches ofthe plaintiffs' motion which were for summary judgment on their causes of action pursuant toLabor Law § 240 (1) and § 241 (6). The plaintiffs satisfied their prima facie burdenby demonstrating that the injured plaintiff was not provided with proper protection under LaborLaw § 240 (1), that the failure to provide such protection also violated the Industrial Code,and that this failure was the proximate cause of the alleged injuries in question. In opposition, thedefendants failed to raise a triable issue of fact regarding whether the injured plaintiff was hiredto work on the construction site and was given permission to work on the date in question(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v Cityof New York, 49 NY2d 557 [1980]). Dillon, J.P., Santucci, Florio and Hall, JJ., concur.