| Tounkara v Fernicola |
| 2011 NY Slip Op 00154 [80 AD3d 470] |
| January 13, 2011 |
| Appellate Division, First Department |
| Balla Tounkara, Appellant-Respondent, v Anthony Fernicola etal., Respondents. (And a Third-Party Action.) Anthony Fernicola et al., Second Third-PartyPlaintiffs-Respondents, v Mt. Moriah, Inc., et al., Second Third-PartyDefendants-Respondents-Appellants. |
—[*1] Dillon Horowitz & Goldstein LLP, New York (Michael M. Horowitz of counsel), forrespondents-appellants. Shaub, Ahmuty, Citrin & Spratt LLP, New York (Gerard S. Rath of counsel), forrespondents.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered June 30, 2009, which deniedplaintiff's motion for summary judgment on his Labor Law § 240 (1) and § 241 (6) claimsand denied the cross motion by second third-party defendants for summary judgment dismissing theclaims against them, unanimously modified, on the law, plaintiff's motion granted with respect to hissection 240 (1) and section 241 (6) claims, and otherwise affirmed, without costs.
Plaintiff made a prima facie showing of defendants' liability under section 240 (1) by asserting thatdefendants failed to provide him with an adequate safety device, and that such failure was a proximatecause of the accident. In opposition, defendants failed to raise a triable issue of fact as to whether theabsence of such a device, or plaintiff's own acts or omissions, constituted the sole proximate cause ofthe accident (see Campuzano v Board ofEduc. of City of N.Y., 54 AD3d 268 [2008]). Even if plaintiff knew that appropriate safetydevices were "readily available" (albeit not in the immediate vicinity of the accident), there is noevidence that plaintiff "knew he was expected to use" the safety devices for the assigned task. There isno evidence that plaintiff received any instructions on how to perform the task, including directions touse any specified [*2]safety devices. Nor is there evidence of any"standing order" conveyed to workers, directing them to use safety devices in performing such a task(see Gallagher v New York Post, 14NY3d 83, 88 [2010]). Accordingly, plaintiff was entitled to summary judgment on his section 240(1) claim.
Additionally, in the absence of any showing by defendant that the safety devices were adequateprotection for the task, defendant failed to satisfy its burden to present evidence sufficient to raise atriable issue of fact as to its comparative negligence defense to plaintiff's section 241 (6) claimpredicated on Industrial Code (12 NYCRR) § 23-1.7 (b) (1) with regard to "hazardousopenings" (see generally Olshewitz v City ofNew York, 59 AD3d 309 [2009]; Catarino v State of New York, 55 AD3d 467 [2008]).Concur—Mazzarelli, J.P., Saxe, McGuire, Freedman and Abdus-Salaam, JJ.