| Welsch v Maimonides Med. Ctr. |
| 2011 NY Slip Op 00507 [80 AD3d 755] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Joseph V. Welsch, Respondent-Appellant, v MaimonidesMedical Center et al., Appellants-Respondents. |
—[*1] Jeffrey S. Lisabeth, Mineola, N.Y. (Shayne, Dachs, Corker, Sauer & Dachs, LLP [JonathanA. Dachs], of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), datedJanuary 26, 2010, as denied that branch of their motion which was for summary judgmentdismissing the cause of action alleging violations of Labor Law § 240 (1), and the plaintiffcross-appeals from so much of the same order as denied his cross motion for summary judgmenton the cause of action alleging violations of Labor Law § 240 (1).
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff allegedly was injured while working in a corridor at the defendant MaimonidesMedical Center (hereinafter MMC) during a construction project on which the defendant Barr &Barr, Inc. (hereinafter BBI), was the construction manager and/or general contractor.
The plaintiff commenced the instant action against MMC and BBI. He asserted causes ofaction alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and § 241 (6). MMC and BBI moved for summary judgment dismissing the complaint.The plaintiff opposed and cross-moved for summary judgment on the issue of liability on thecause of action alleging violations of Labor Law § 240 (1). In a separate order not appealedfrom, the Supreme Court granted those branches of the motion of MMC and BBI which were forsummary judgment dismissing the causes of action alleging violations of Labor Law§§ 200 and 241 (6). That same order stated that the "[r]emainder of relief under[Labor Law] § 240 (1) is submitted for decision." In an order dated January 26, 2010, theSupreme Court denied that branch of the motion of MMC and BBI which was for summaryjudgment dismissing the cause of action alleging violations of Labor Law § 240 (1), anddenied the cross motion of the plaintiff for summary judgment on the cause of action allegingviolations of Labor Law § 240 (1). MMC and BBI appeal and the plaintiff cross-appealsfrom that order. We affirm.[*2]
"Generally, the issue of whether a particular safety deviceprovided proper protection is a question of fact for the jury" (Delahaye v Saint Anns School, 40 AD3d 679, 682-683 [2007];see Alava v City of New York, 246 AD2d 614, 615 [1998]). Here, neither party made aprima facie showing as to whether the plaintiff had access to properly placed and adequate safetydevices (see D'Angelo v BuildersGroup, 45 AD3d 522, 524 [2007]; Florio v LLP Realty Corp., 38 AD3d 829, 830 [2007]). Moreover, atriable issue of fact exists as to whether the plaintiff's conduct was the sole proximate cause ofthe accident (see D'Angelo v Builders Group, 45 AD3d at 524; Florio v LLP RealtyCorp., 38 AD3d at 830; Marin vLevin Props., LP, 28 AD3d 525, 526 [2006]).
The remaining contention of MMC and BBI is without merit.
Accordingly, that branch of the motion of MMC and BBI which was for summary judgmentdismissing the cause of action alleging violations of Labor Law § 240 (1), and the crossmotion of the plaintiff for summary judgment on the cause of action alleging violations of LaborLaw § 240 (1) were properly denied. Mastro, J.P., Chambers, Roman and Cohen, JJ.,concur.