| Daley v 250 Park Ave., LLC |
| 2015 NY Slip Op 01917 [126 AD3d 747] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Denzil Daley et al., Respondents, v 250 ParkAvenue, LLC, et al., Appellants, et al., Defendants. |
Hoey, King, Epstein, Prezioso & Marquez (Mischel & Horn, P.C., NewYork, N.Y. [Scott T. Horn and Naomi M. Taub], of counsel), for appellant 250 ParkAvenue, LLC.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP,Lake Success, N.Y. (Anthony J. Genovesi, Jr., of counsel), for appellant NucorConstruction Corporation.
Ginsberg & Wolf, P.C., New York, N.Y. (Robert M. Ginsberg of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant NucorConstruction Corp. appeals, as limited by its brief, from so much of an order of theSupreme Court, Kings County (F. Rivera, J.), dated January 29, 2013, as, uponreargument, vacated the determination in an order dated October 12, 2011, denying thatbranch of the plaintiffs' motion which was for summary judgment against it on the issueof liability on the cause of action alleging a violation of Labor Law § 240(1), and thereupon granted that branch of the plaintiff's motion, and adhered to thedetermination in the order dated October 12, 2011, denying that branch of its crossmotion which was for summary judgment dismissing that cause of action insofar asasserted against it, and the defendant 250 Park Avenue, LLC, separately appeals, aslimited by its brief, from so much of the same order dated January 29, 2013, as, uponreargument, vacated the determination in the order dated October 12, 2011, denying thatbranch of the plaintiffs' motion which was for summary judgment against it on the issueof liability on the cause of action alleging a violation of Labor Law § 240(1), and thereupon granted that branch of the plaintiff's motion.
Ordered that the order dated January 29, 2013, is modified, on the law, by deletingthe provisions thereof, upon reargument, vacating the determinations in the order datedOctober 12, 2011, denying those branches of the plaintiffs' motion which were forsummary judgment against the defendants Nucor Construction Corp. and 250 ParkAvenue, LLC, on the issue of liability on the cause of action alleging a violation ofLabor Law § 240 (1) insofar as asserted against them, and thereupongranting those branches of the plaintiffs' motion, and substituting therefor a provision,upon reargument, adhering to the determinations in the order dated October 12, 2011,denying those branches of the plaintiffs' motion; as so modified, the order is affirmedinsofar as appealed from, with costs to the defendant 250 Park Avenue, LLC, payable bythe plaintiffs.
[*2] In August 2009, thedefendant 250 Park Avenue, LLC (hereinafter 250 Park), owned the premises at 250Park Avenue in Manhattan. The defendant Nucor Construction Corp. (hereinafter Nucor)was the general contractor on a renovation project at those premises. The plaintiff DenzilDaley was employed as an electrical mechanic by one of Nucor's subcontractors. WhileDaley was feeding wires through a conduit, the A-frame ladder on which he wasstanding tipped over, causing him to fall and sustain injuries. As relevant on theseappeals, Daley, and his wife suing derivatively (hereinafter together the plaintiffs),contend that a violation of Labor Law § 240 (1) was a proximate cause ofDaley's fall. 250 Park and Nucor (hereinafter together the appellants) contend thatDaley's misuse of the nondefective ladder, including his failure to follow specific safetyinstructions as to the proper placement and use of the ladder, was the sole proximatecause of the accident.
Upon reargument, the Supreme Court granted those branches of the plaintiffs' motionwhich were for summary judgment against the appellants on the cause of action alleginga violation of Labor Law § 240 (1), and denied Nucor's cross motion forsummary judgment dismissing that cause of action insofar as asserted against it.
The Supreme Court erred in, upon reargument, granting those branches of theplaintiffs' motion which were for summary judgment against the appellants on the causeof action alleging a violation of Labor Law § 240 (1). In order to prevail ona Labor Law § 240 (1) cause of action, a plaintiff must prove that the statutewas violated and that the violation was a proximate cause of the injuries (see Cahill v Triborough Bridge& Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous.Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). Proof that the plaintiff's ownnegligence was also a proximate cause will not defeat the claim (see Cahill vTriborough Bridge & Tunnel Auth., 4 NY3d at 39; Grant v City of New York,109 AD3d 961, 962-963 [2013]). When the evidence establishes, however, that theplaintiff's own negligence was the sole proximate cause of the injuries, the defendantmay not be held liable for those injuries (see Cahill v Triborough Bridge &Tunnel Auth., 4 NY3d at 39; Blake v Neighborhood Hous. Servs. of N.Y.City, 1 NY3d at 287; Gittleson v Cool Wind Ventilation Corp., 46 AD3d 855,856 [2007]). The parties' submissions demonstrated that the ladder itself was notdefective and was appropriate to Daley's task.
There are triable issues of fact, however, as to whether the ladder was mispositionedand, if so, who mispositioned it, and, if it was mispositioned by Daley, whether hisconduct was the sole proximate cause of the ladder's tipping over (see Corchado v 5030 BroadwayProps., LLC, 103 AD3d 768, 769 [2013]). Therefore, upon reargument, theSupreme Court properly denied that branch of Nucor's motion which was for summaryjudgment dismissing the Labor Law § 240 (1) cause of action insofar asasserted against it.
In light of our determination, we need not address the parties' remaining contentions.Skelos, J.P., Balkin, Hall and Maltese, JJ., concur.