| Durmiaki v International Bus. Machs. Corp. |
| 2011 NY Slip Op 05447 [85 AD3d 960] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Simon Durmiaki, Appellant, v International BusinessMachines Corporation et al., Respondents. |
—[*1] Goldberg Segalla, LLP, White Plains, N.Y. (William T. O'Connell and Rafael Otero ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), datedOctober 1, 2010, as denied his motion for summary judgment on so much of the complaint asalleged violations of Labor Law § 240 (1).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theplaintiff's motion for summary judgment on so much of the complaint as alleged violations ofLabor Law § 240 (1) is granted.
The plaintiff, a laborer working on a demolition project, was instructed by his supervisor tocut and remove a horizontal pipe located 9 to 10 feet above the ground. The pipe was suspendedby hangers connected to the ceiling. The plaintiff ascended an unsecured A-frame ladder toperform the work and stood approximately four feet above the ground, as he had done in the pastin order to cut and remove other such pipes. After he began to cut the overhead pipe, he noticed it"bowing" in an unusual manner and observed that one of the hangers holding the pipe about 10or 12 feet away from the plaintiff's location was missing one of the rods. Before the plaintiffcould disengage the saw and descend the ladder, the pipe snapped and fell, striking the ladder andcausing the plaintiff to fall. On these facts, the plaintiff made a prima facie showing of hisentitlement to judgment as a matter of law on so much of the complaint as alleged violations ofLabor Law § 240 (1) (seeKosavick v Tishman Constr. Corp. of N.Y., 50 AD3d 287, 287-288 [2008]; Cordova v 360 Park Ave. S. Assoc., 33AD3d 750 [2006]).
In opposition to the plaintiff's prima facie showing, the defendants failed to raise a triableissue of fact as to whether the plaintiff's conduct was the sole proximate cause of his injury (see Gallagher v New York Post, 14NY3d 83, 88 [2010]; Pichardo vAurora Contrs., Inc., 29 AD3d 879, 881 [2006]; cf. Robinson v East Med. Ctr., LP, 6 NY3d 550 [2006]; Montgomery v Federal Express Corp.,4 NY3d 805 [2005]). Although the defendants contend that the plaintiff violated a safetyrule requiring that all laborers work with a partner during demolition work, they offered noevidence that such a rule was [*2]communicated to the laborers(see Gallagher v New York Post, 14 NY3d at 88). Similarly, the defendants' contentionthat the plaintiff's failure to inspect the hangers supporting the overhead pipe was the soleproximate cause of his injuries is without merit, since there is no evidence that he was everinstructed to follow such a procedure and he was not given an opportunity to inspect the hangersas he was specifically directed by his supervisor to cut the pipe at that time (see Kosavick vTishman Constr. Corp. of N.Y., 50 AD3d at 287-288; cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37[2004]). Moreover, while the defendants established that manlifts, scaffolds, and harnesses wereavailable at the worksite, there was no evidence that the plaintiff had been instructed to utilizethese other safety devices or to avoid using the ladder (see Beamon v Agar Truck Sales, Inc., 24 AD3d 481, 483 [2005];cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 37). Accordingly, theSupreme Court should have granted the plaintiff's motion for summary judgment on so much ofthe complaint as alleged violations of Labor Law § 240 (1). Rivera, J.P., Eng, Roman andMiller, JJ., concur.