| Chang Han Kim v Clymer Cent. School |
| 2010 NY Slip Op 03572 [72 AD3d 1547] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Chang Han Kim et al., Respondents, v Clymer Central School etal., Respondents, and Environmental Products & Services, Inc.,Appellant, et al., Defendant. |
—[*1] Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Chautauqua County (John T. Ward, A.J.),entered November 7, 2008 in a personal injury action. The order, inter alia, granted the motion ofplaintiffs for partial summary judgment on the issue of liability pursuant to Labor Law §240 (1).
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying plaintiffs' motion and as modified the order is affirmed without costs, and the matter isremitted to Supreme Court, Chautauqua County, for further proceedings in accordance with thefollowing memorandum: Plaintiffs commenced this Labor Law and common-law negligenceaction to recover damages for injuries sustained by Chang Han Kim (plaintiff) when he fell froma ladder while removing asbestos from defendant Clymer Central School. DefendantEnvironmental Products & Services, Inc. (EPS) appeals from an order that, inter alia, granted themotion of plaintiffs for partial summary judgment on the issue of liability pursuant to Labor Law§ 240 (1). We conclude that plaintiffs met their initial burden by "establish[ing] that therewas a violation of the statute, which was the proximate cause of [plaintiff's] injuries" (Cherry v Time Warner, Inc., 66 AD3d233, 236 [2009]). We further conclude, however, that EPS raised a triable issue of factwhether the actions of plaintiff were the sole proximate cause of his injuries and thus whetherplaintiffs are not entitled to partial summary judgment (see generally Robinson v East Med. Ctr., LP, 6 NY3d 550, 554[2006]). We therefore modify the order accordingly.
Although EPS further contends that Supreme Court erred in failing to dismiss the Labor Law§ 241 (6) claim, we note that the order on appeal expressly provides that it does notaddress the Labor [*2]Law § 241 (6) claim. Indeed, itwould not be necessary for the court to address that claim in view of its resolution of plaintiffs'motion with respect to section 240 (1). "Inasmuch as the [Labor Law § 241 (6)] issue is nolonger moot, we remit the matter to Supreme Court [to determine those parts of the motion ofEPS and the motion of defendants Clymer Central School, School Board of Clymer CentralSchool District and Barnes Construction Company for summary judgment dismissing thatclaim]" (Murray v LancasterMotorsports, Inc., 27 AD3d 1193, 1196 [2006]).
We have considered the remaining contention of EPS and conclude that it is without merit.Present—Smith, J.P., Centra, Fahey and Pine, JJ.