| Zong Mou Zou v Hai Ming Constr. Corp. |
| 2010 NY Slip Op 04784 [74 AD3d 800] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Zong Mou Zou, Appellant, v Hai Ming Construction Corp.et al., Respondents. (And a Third-Party Action.) |
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In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Solomon, J.), dated October 29, 2008, which denied hismotion for summary judgment on the issue of liability on so much of the complaint as alleged aviolation of Labor Law § 240 (1).
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability on so much of the complaint as alleged a violation ofLabor Law § 240 (1) is granted.
The plaintiff, who is both the owner and an employee of the subcontractor Jian LiConstruction, Inc., allegedly was injured at a construction site when sheet metal deckingcollapsed underneath him, causing him to fall 10 to 13 feet to the basement. The plaintiffcommenced this action against the general contractor, Hai Ming Construction Corp., and theowners of the site, 62 Maspeth Avenue, LLC, and Danbro, LLC (hereinafter collectively thedefendants), alleging common-law negligence and violations of Labor Law §§ 200,240 (1) and § 241 (6). Thereafter, the plaintiff moved for summary judgment on the issueof liability on so much of the complaint as alleged a violation of Labor Law § 240 (1), andthe Supreme Court denied his motion.
The plaintiff met his prima facie burden of establishing a violation of Labor Law §240 (1), and that such violation was a proximate cause of his accident (see Robertti v PowersChang, 227 AD2d 542, 543 [1996]; Richardson v Matarese, 206 AD2d 353 [1994];Clute v Ellis Hosp., 184 AD2d 942, 944 [1992]).
In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff'sactions were the sole proximate cause of his accident. Where, as here, a violation of Labor [*2]Law § 240 (1) is a proximate cause of an accident, theplaintiff's conduct cannot be deemed solely to blame for it (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,290 [2003]; Valensisi v Greens at HalfHollow, LLC, 33 AD3d 693, 696 [2006]).
The defendants also failed to raise a triable issue of fact as to whether the plaintiff was arecalcitrant worker. The defendants failed to present any evidence that the plaintiff was providedwith certain safety devices, that such devices were readily available for his use, and that theplaintiff was specifically instructed to use such devices but chose for no good reason to disregardthose instructions (cf. Cahill vTriborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]; Yax v Development Team, Inc., 67AD3d 1003, 1004 [2009]). Accordingly, the Supreme Court should have granted theplaintiff's motion for summary judgment on the issue of liability on so much of the complaint asalleged a violation of Labor Law § 240 (1). Prudenti, P.J., Angiolillo, Balkin andChambers, JJ., concur.