| Olea v Overlook Towers Corp. |
| 2013 NY Slip Op 03185 [106 AD3d 431] |
| May 2, 2013 |
| Appellate Division, First Department |
| Hugo Olea, Appellant, v Overlook Towers Corp. etal., Respondents, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Jeffrey Briem of counsel),for Overlook Towers Corp., Rudd Realty Management Corp. and York RestorationCorp., respondents. Kral, Clerkin, Redmond, Ryan, Perry & Van Etten, LLP, Melville (Robert D. Martinof counsel), for Lopez Construction Services Corp., respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 10,2012, which, to the extent appealed from as limited by the briefs, denied plaintiff'smotion for partial summary judgment as to liability on his Labor Law § 240 (1)claim, and granted so much of the cross motions of defendants Overlook Towers Corp.,Rudd Realty Management Corp., York Restoration Corp., and Lopez ConstructionServices, Corp. (collectively, defendants) as sought summary judgment dismissing thesection 240 (1) claim, unanimously reversed, on the law, without costs, plaintiff's motiongranted, defendants' cross motions denied, and the matter remanded to Supreme Court toaddress so much of the cross motion of defendants Overlook, Rudd, and York as soughtsummary judgment on their cross claims against Lopez and dismissal of the cross claimsagainst them, and so much of defendant Lopez's cross motion as sought dismissal of thecross claims against it.
Defendants failed to establish that plaintiff's method of attempting to go from thebalcony where he had been working onto a motorized scaffold was the sole proximatecause of his accident. The president of York testified that a worker would customarily gofrom a balcony to a motorized scaffold by jumping onto the scaffold and then climbingover its railing, which was the very method plaintiff was trying to employ when he fell(see Hernandez v ArgoCorp., 95 AD3d 782, 783 [1st Dept 2012]). The evidence is also inconclusiveabout whether safety lines were available at the time of the accident, and whetherplaintiff had been instructed to use them (see Gallagher v New York Post, 14 NY3d 83, 88-89[2010]).
Moreover, even if plaintiff was negligent in performing the aforementioned acts, orin failing to dismantle a pipe scaffold blocking another means of access to the motorizedscaffold, his acts were not the sole proximate cause of his accident (seeHernandez, 95 AD3d at 783). Indeed, the president of Lopez admitted that it wouldhave been safer to provide ladders to protect a worker in going from a balcony to amotorized scaffold. Accordingly, the evidence shows that defendants violated Labor Law§ 240 (1) by failing to provide an adequate safety device (id.).Concur—Mazzarelli, J.P., Andrias, Saxe, Manzanet-Daniels and Gische, JJ.