| Tomlins v DiLuna |
| 2011 NY Slip Op 04234 [84 AD3d 1064] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Rudolf Tomlins, Appellant, v John DiLuna et al.,Defendants/Third-Party Plaintiffs-Respondents, and Luna Landscape Corp., Respondent. RobertTomlins, Doing Business as Kut Rite Construction, Third-PartyDefendant-Respondent. |
—[*1] Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. (William S. Badura of counsel), fordefendants/third-party plaintiffs-respondents and defendant-respondent. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Harold Y. MacCartney, Jr.and Catherine Friesen of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Dutchess County (Brands, J.), dated June 4, 2010, which denied his motionfor summary judgment on the issue of liability on his cause of action pursuant to Labor Law§ 240 (1).
Ordered that the order is affirmed, with one bill of costs payable to the respondents appearingseparately and filing separate briefs.
The defendants John DiLuna and Rocco DiLuna owned real property where they werebuilding a two-family house as an investment. They hired their own company, the defendantLuna Construction Corporation, as the general contractor for the project. Kut Rite Construction,allegedly owned by the plaintiff Rudolf Tomlins and the third-party defendant Robert Tomlins,doing business as Kut Rite Construction (hereinafter Kut Rite), was hired to do the siding,roofing, and framing on the property. The plaintiff allegedly was injured while working on theproject when he slipped off the porch roof and fell approximately 20 feet to the ground. Hecommenced this action against the defendants alleging, inter alia, a violation of Labor Law§ 240 (1). The defendants commenced a third-party action against Kut Rite. Afterdiscovery was complete, the plaintiff moved for summary judgment on the issue of liability onhis cause of action pursuant to Labor Law § 240 (1), and the Supreme Court denied hismotion. We affirm.
To establish a violation of Labor Law § 240 (1), a plaintiff must demonstrate that thedefendants violated the statute and that this violation was the proximate cause of his injuries (see McGuire v Fuller, 81 AD3d794, 795 [2011]; Andro v City ofNew York, 62 AD3d 919 [2009]). If the plaintiff's actions are [*2]the sole proximate cause of his injuries, liability under Labor Law§ 240 (1) does not attach (seeRobinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; Herrnsdorf v Bernard Janowitz Constr.Corp., 67 AD3d 640 [2009]).
The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter oflaw (see Andro v City of New York, 62 AD3d at 919-920). On his motion, the plaintiffsubmitted deposition testimony indicating that there was scaffolding owned by Kut Rite on theproperty which he used earlier on the day of his accident. This evidence raised triable issues offact as to whether the scaffolding was an adequate safety device for the plaintiff's work that wasreadily available and whether his decision not to use the scaffolding was the sole proximate causeof his accident (see Masullo v 1199Hous. Corp., 63 AD3d 430, 432-433 [2009]; Andro v City of New York, 62AD3d at 920; Miro v Plaza Constr.Corp., 38 AD3d 454 [2007], mod 9 NY3d 948 [2007]).
Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment on the issue of liability on his cause of action pursuant to Labor Law § 240 (1).Covello, J.P., Eng, Chambers and Miller, JJ., concur.