| Moran v 200 Varick St. Assoc., LLC |
| 2011 NY Slip Op 00198 [80 AD3d 581] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Jose Miguel Moran, Appellant, v 200 Varick Street Associates,LLC, et al., Respondents. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief,from (1) so much of an order of the Supreme Court, Queens County (Mayersohn, J.), enteredFebruary 3, 2010, as denied those branches of his motion which were for summary judgment on theissue of liability on the causes of action alleging violations of Labor Law § 240 (1) and §241 (6) predicated on 12 NYCRR 23-5.18 (b), and (2) so much of an order of the same court datedApril 19, 2010, as, in effect, upon reargument, adhered to the prior determination.
Ordered that the appeal from the order entered February 3, 2010, is dismissed, as that order wassuperseded by the order dated April 19, 2010, made upon reargument; and it is further,
Ordered that the order dated April 19, 2010, is reversed insofar as appealed from, on the law, andupon reargument, the determination in the order entered February 3, 2010, denying those branches ofthe plaintiff's motion which were for summary judgment on the issue of liability on his causes of actionalleging violations of Labor Law § 240 (1) and § 241 (6) predicated on 12 NYCRR23-5.18 (b) is vacated, and those branches of the plaintiff's motion are granted; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendants appearingseparately and filing separate briefs.
In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establish thatthere was a violation of the statute and that the violation was a proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y.City, 1 NY3d 280, 289 [2003]). Here, the plaintiff satisfied his prima facie burden ofestablishing his entitlement to judgment as a matter of law on his Labor Law § 240 (1) cause ofaction by demonstrating that he was engaged in a statutorily protected activity when he fell off a scaffoldthat failed to provide proper protection because it lacked safety railings. Accordingly, the statute wasviolated and the violation was a proximate cause of his injuries (see Zengotita v JFK Intl. Air Term., [*2]LLC, 67 AD3d 426, 427 [2009]; Madalinski v Structure-Tone, Inc., 47AD3d 687, 687-688 [2008]; Vergara vSS 133 W. 21, LLC, 21 AD3d 279, 280 [2005]). In opposition, the defendants failed toraise a triable issue of fact sufficient to defeat the plaintiff's entitlement to summary judgment on hisLabor Law § 240 (1) cause of action. The evidence that the plaintiff was not engaged in astatutorily protected activity or was intoxicated was not admissible (see Zuckerman v City of NewYork, 49 NY2d 557, 563 [1980]; Maniscalco v Liro Eng'g Constr. Mgt., 305 AD2d378, 380 [2003]; Madalinski v Structure-Tone, Inc., 47 AD3d at 688). Moreover, since thescaffold lacked safety railings, the defendant's alleged intoxication was not the sole proximate cause ofhis injuries (see Bondanella v Rosenfeld, 298 AD2d 941, 942 [2002]; Podbielski vKMO-361 Realty Assoc., 294 AD2d 552, 553-554 [2002]; Sergeant v Murphy FamilyTrust, 284 AD2d 991, 992 [2001]). Evidence that a subsequent inspection of the scaffold revealedthat its wheel locks were functioning properly was insufficient to raise a triable issue of fact as towhether the scaffold provided proper protection in light of the fact that it lacked railings (see Vergara v SS 133 W. 21, LLC, 21AD3d 279, 280 [2005]; Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]).
The plaintiff also satisfied his prima facie burden of establishing his entitlement to judgment as amatter of law on his Labor Law § 241 (6) cause of action insofar as predicated on a violation of12 NYCRR 23-5.18 (b) (see Ritzer v 6 E.43rd St. Corp., 57 AD3d 412, 413 [2008]). In opposition, the defendants failed to raise atriable issue of fact (id.).
Accordingly, in effect, upon reargument, the Supreme Court should have granted those branches ofthe plaintiff's motion which were for summary judgment on the issue of liability on his causes of actionalleging violations of Labor Law § 240 (1) and § 241 (6) predicated on 12 NYCRR23-5.18 (b). Covello, J.P., Florio, Eng and Chambers, JJ., concur.