Under Montgomery and Robinson liability under Labor Law § 240 (1) cannot be imposed where the injured worker knows that adequate safety devices are available at the job site but for no good reason fails to use them. We have applied this rule to preclude recovery under section 240 (1) in a number of cases ( see e.g. Egan v Monadnock Constr., Inc., 43 AD3d 692, lv denied 10 NY3d 706; see also Thomas v Fall Cr. Contrs., Inc., 21 AD3d 756).

Plaintiffs actions were the sole proximate cause of the accident. ( Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Robinson v East Med. Ctr. LP, 6 NY3d 550; Montgomery v Federal Express Corp., 4 NY3d 805; Egan v Monadnock Constr., Inc., 43 AD3d 692; Stark v Eastman Kodak Co., 256 AD2d 1134; Cahill v Triborough Bridge Tunnel Auth., 4 NY3d 35.)

Decided March 25, 2008. Appeal from the 1st Dept: 43 AD3d 692. Motions for Leave to Appeal, denied.

In opposition, defendants failed to raise an issue of fact as to whether plaintiff's conduct was the sole proximate cause of his injuries. Defendants presented no evidence to show that appropriate safety equipment was available to plaintiff, and that plaintiff then unreasonably chose not to use it (seePierrakeas at 575, 114 N.Y.S.3d 318 ; Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402, 403, 963 N.Y.S.2d 14 [1st Dept. 2013] ; compareEgan v. Monadnock Constr., Inc., 43 A.D.3d 692, 693–694, 841 N.Y.S.2d 547 [1st Dept. 2007], lv denied 10 N.Y.3d 706, 857 N.Y.S.2d 39, 886 N.E.2d 804 [2008] ). In any event, plaintiff's alleged failure to fully secure the ladder before he used it was, at most, comparative negligence, and is not sufficient to defeat plaintiff's motion (seeRodriguez at 538, 122 N.Y.S.3d 10 ; Orellano v. 29 E. 37th St. Realty Corp., 292 A.D.2d 289, 291, 740 N.Y.S.2d 16 [1st Dept. 2002] ).

Plaintiff also admitted to unhooking his safety line in order to climb through the window cut-out. Under the circumstances, adequate safety devices were available for plaintiff's use at the job site, and his own actions in unhooking his safety line and climbing through the window were the sole 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 [2006] ; Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592 [2005] ; Egan v. Monadnock Constr., Inc. , 43 A.D.3d 692, 693, 841 N.Y.S.2d 547 [1st Dept. 2007], lv denied 10 N.Y.3d 706, 857 N.Y.S.2d 39, 886 N.E.2d 804 [2008] ). Because plaintiff's actions were the sole proximate cause of his injuries, the claims for common-law negligence and violation of Labor Law § 200 were also properly dismissed ( Comes v. New York State Elec. & Gas Corp. , 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993] [ Labor Law § 200 ]; Salvador v. New York Botanical Garden, 71 A.D.3d 422, 423, 895 N.Y.S.2d 410 [1st Dept. 2010] [common-law negligence] ).

Plaintiff, instead of leaning off the ladder to his left to save a few minutes, could have stepped down the 2½ feet and repositioned the ladder. Plaintiff also could have directed another member of his crew to stabilize the ladder while he worked and, in my view, a jury could conclude that plaintiff's failure to exercise either of those safety options, which were readily available, was the sole proximate cause of his injury ( see generally Egan v Monadnock Constr., Inc., 43 AD3d 692; Mercado v New York Univ., 29 AD3d 496). Finally, I disagree with the majority's conclusion that there are no material inconsistencies between plaintiff's deposition testimony and his affidavit in support of his motion for summary judgment.

Although plaintiff had ridden in the bucket of the excavator in violation of 12 NYCRR 23-9.2 (i) in order to lower himself into the trench where the manhole was being installed and then to raise himself out of the trench, he was no longer in the bucket at the time of the accident. Thus, defendant's alleged violation of 12 NYCRR 23-9.2 (i) was not a proximate cause of plaintiffs injuries ( see generally Egan v Monadnock Constr, Inc., 43 AD3d 692, 694; Mercado v TPT Brooklyn Assoc., LLC, 38 AD3d 732, 733). Although we agree with plaintiffs that 12 NYCRR 23-9.4 (h) (4) applies herein because the excavator was being used at the time of the accident to handle materials, we reject plaintiffs' contention that plaintiff was an "[u]nauthorized person" within the meaning of that regulation ( 12 NYCRR 23-9.4 [h] [4]). Plaintiff was a member of the work crew on the site and was injured while removing a rod from the trench after using it to measure the grade. Thus, "[u]nder any view of the facts, plaintiff was not an `unauthorized' person `in the . . . [area] immediately adjacent to . . . [an excavator] in operation'" ( Mingle v Barone Dev. Corp. [appeal No. 2], 283 AD2d 1028, 1029).

It is well settled that a Labor Law § 240(1) claim cannot be determined as a matter of law if there are genuine issues of material fact whether the accident was caused by the plaintiff's failure to use available safety devices that were adequate for the work being performed. Here there is an issue of fact as to whether the plaintiff could have utilized the orange ladder or the boom lift to access his worksite and whether his decision to use the unsecured and separated blue extension ladder instead was the sole proximate cause of his injuries (see Egan v Monadnock Const., Inc., 43 A.D.3d 692 [1st Dept 2007]; Mercadov New York University, 29 A.D.3d 496, 496-97 [1st Dept. 2006]). Thus, even though the plaintiff's version of the accident is otherwise uncontroverted, there is an issue of fact as to whether the plaintiffs actions were the sole proximate cause of his injuries. Accordingly, in motion sequence 006, the plaintiff's motion for partial summary judgment on Labor Law §240(1) is denied.

(id., citing Ross vCurtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 504-05 [1993]). Therefore, in order to prevail on a Labor Law § 241 (6) claim, "a plaintiff must establish a violation of an implementing regulation which sets forth a specific standard of conduct" (Ortega v Everest Realty LLC, 84 A.D.3d 542, 544 [1st Dept 2011]), and that the violation was a proximate cause of the injury (EganvMonadnock Constr., Inc., 43 A.D.3d 692, 694 [1st Dept 2007], lv denied 10 N.Y.3d 706 [2008]).

Therefore, in order to prevail on a Labor Law § 241 (6) claim, "a plaintiff must establish a violation of an implementing regulation which sets forth a specific standard of conduct" (Ortega v. Everest Realty LLC, 84 A.D.3d 542, 544 [1st Dept 2011]), and that the violation was a proximate cause of the injury (Eganv.Monadnock Constr., Inc., 43 A.D.3d 692, 694 [1st Dept 2007], lv denied 10 N.Y.3d 706 [2008]).