Opinion
2011-10-11
Jeffrey BERMAN, appellant, et al., plaintiff,v.FRANCHISED DISTRIBUTORS, INC., et al., respondents.
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Gilbert J. Hardy of counsel), for appellant.Friedman Harfenist Kraut & Perlstein, LLP, Lake Success, N.Y. (Steven J. Harfenist of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiff Jeffrey Berman appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated August 9, 2010, as denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff Jeffrey Berman (hereinafter the plaintiff) was employed to power wash and paint the exterior of a commercial building. At his deposition, he testified that he placed an A-frame ladder so that two of its footings were resting on grass and two were resting on an asphalt sidewalk alongside a wall of the building.
Working alone, he proceeded to power wash the wall, causing water to fall to the ground. After power washing for about 20 minutes, during which time he moved the ladder once, the plaintiff was descending from the eighth rung of the ladder when the top of the ladder moved away from the building and he fell. The plaintiff testified that he fell because the footings of the ladder sank into the ground. He commenced this action against the building owners and interposed a cause of action alleging a violation of Labor Law § 240(1).
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1) by establishing that the statute was violated and that the violation was a proximate cause of his injuries ( see Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554–555, 814 N.Y.S.2d 589, 847 N.E.2d 1162; Klein v. City of New York, 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458; Leconte v. 80 E. End Owners Corp., 80 A.D.3d 669, 915 N.Y.S.2d 140; Ricciardi v. Bernard Janowitz Constr. Corp., 49 A.D.3d 624, 853 N.Y.S.2d 373; Rudnik v. Brogor Realty Corp., 45 A.D.3d 828, 847 N.Y.S.2d 141; Cordova v. 360 Park Ave. S. Assoc., 33 A.D.3d 750, 823 N.Y.S.2d 435; Rivera v. Dafna Constr. Co., Ltd., 27 A.D.3d 545, 813 N.Y.S.2d 109; Sinzieri v. Expositions, Inc., 270 A.D.2d 332, 704 N.Y.S.2d 293; Bryan v. City of New York, 206 A.D.2d 448, 614 N.Y.S.2d 554).
However, in opposition, the defendants raised triable issues of fact as to whether they provided a proper safety device and whether the conduct of the plaintiff, including his alleged consumption of alcohol prior to and during the time that he was working ( see Moran v. 200 Varick St. Assoc., LLC, 80 A.D.3d 581, 914 N.Y.S.2d 307; Bondanella v. Rosenfeld, 298 A.D.2d 941, 747 N.Y.S.2d 645; Podbielski v. KMO–361 Realty Assoc., 294 A.D.2d 552, 742 N.Y.S.2d 664; Sergeant v. Murphy Family Trust, 284 A.D.2d 991, 726 N.Y.S.2d 537), was the sole proximate cause of his injuries ( see Canino v. Electronic Tech. Co., 28 A.D.3d 932, 813 N.Y.S.2d 557; Gregorio v. J.M. Dennis Constr. Co. Corp., 13 A.D.3d 480, 787 N.Y.S.2d 93; Becovic v. Scoria & Diana Assoc., Inc., 12 A.D.3d 388, 389, 783 N.Y.S.2d 831; Costello v. Hapco Realty, 305 A.D.2d 445, 761 N.Y.S.2d 79; Castronovo v. Doe, 274 A.D.2d 442, 711 N.Y.S.2d 27). Such issues of fact preclude an award of summary judgment to the plaintiff on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
MASTRO, J.P., FLORIO, ENG and SGROI, JJ., concur.