| Wnetrzak v V.C. Vitanza Sons, Inc. |
| 2010 NY Slip Op 09367 [79 AD3d 939] |
| December 17, 2010 |
| Appellate Division, Second Department |
| Edward Wnetrzak et al., Appellants, v V.C. Vitanza Sons, Inc.,Respondent, et al., Defendants. |
—[*1] Traub, Lieberman, Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Lisa J. Black of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of theSupreme Court, Queens County (Grays, J.), entered May 28, 2009, which, inter alia, granted themotion of the defendant V.C. Vitanza Sons, Inc., for summary judgment dismissing the complaintinsofar as asserted against it, and denied that branch of their cross motion which was for summaryjudgment on the issue of liability on the cause of action to recover damages for violation of Labor Law§ 240 (1).
Ordered that the order is affirmed, with costs.
"To impose liability pursuant to Labor Law § 240 (1), there must be a violation of the statuteand that violation must be a proximate cause of the plaintiff's injuries" (Tama v Gargiulo Bros., Inc., 61 AD3d958, 960 [2009]; see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). "Where there is nostatutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there canbe no recovery under Labor Law § 240 (1)" (Treu v Cappelletti, 71 AD3d 994, 997 [2010]). Here, the defendantV.C. Vitanza Sons, Inc. (hereinafter Vitanza), demonstrated its prima facie entitlement to judgment as amatter of law dismissing the Labor Law § 240 (1) cause of action insofar as asserted against itby establishing that the injured plaintiff's conduct was the sole proximate cause of his accident (seeBlake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 290-291; Leniar v Metropolitan Tr. Auth., 37 AD3d425, 426 [2007]). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]). The Supreme Court properly rejected thecontentions in the injured plaintiff's affidavit submitted in opposition to the motion since it contradictedhis prior deposition testimony (see Amplo vMilden Ave. Realty Assoc., 52 AD3d 750, 751 [2008]; Jimenez v T.J. Maxx, Inc., 17 AD3d 638 [2005]). Accordingly, theSupreme Court properly granted that branch of Vitanza's motion which was for summary judgmentdismissing the Labor Law § 240 (1) cause of action insofar as asserted against it, and denied thatbranch of the plaintiffs' cross motion which was for summary judgment on the issue of liability on thatcause of action.
Vitanza also established its prima facie entitlement to summary judgment dismissing [*2]the Labor Law § 241 (6) cause of action insofar as assertedagainst it by demonstrating that the plaintiffs failed to allege the violation of a specific Industrial Codeprovision (see Gasques v State of NewYork, 59 AD3d 666, 668 [2009]; Karapati v K.J. Rocchio, Inc., 12 AD3d 413, 415 [2004]). Inopposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' excuse of law office failurefor the omission from its opposition papers of a specific Industrial Code provision is improperly raisedfor the first time on appeal (see Wilner vAllstate Ins. Co., 71 AD3d 155, 168 [2010]). Therefore, the Supreme Court properlygranted that branch of Vitanza's motion which was for summary judgment dismissing the Labor Law§ 241 (6) cause of action insofar as asserted against it.
Vitanza satisfied its prima facie burden of establishing its entitlement to judgment as a matter of lawdismissing the Labor Law § 200 and common-law negligence claims insofar as asserted against itby demonstrating that the injured plaintiff was injured, not by a dangerous condition, but by the mannerin which he performed his work, and that it did not have the authority to supervise or control theperformance of his work (see Ortega vPuccia, 57 AD3d 54, 61 [2008]; Richichi v Construction Mgt. Tech., 244 AD2d540, 541-542 [1997]). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, theSupreme Court properly granted that branch of Vitanza's motion which was for summary judgmentdismissing the Labor Law § 200 and common-law negligence claims insofar as asserted againstit.
The plaintiffs' remaining contention is without merit. Fisher, J.P., Santucci, Eng and Sgroi, JJ.,concur.