Opinion
2014-12-11
Mark FABIANO et al., Respondents, v. STATE of New York, Appellant.
Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellant. Sacks & Sacks LLP, New York City (Scott N. Singer of counsel), for respondents.
Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellant. Sacks & Sacks LLP, New York City (Scott N. Singer of counsel), for respondents.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR., LYNCH and CLARK, JJ.
LAHTINEN, J.P.
Appeal from an order of the Court of Claims (Milano, J.), entered October 10, 2013, which, among other things, granted claimants' motion for partial summary judgment on the issue of liability.
Claimant Mark Fabiano (hereinafter claimant) was employed by a contractor hired to paint one of defendant's bridges and was injured when he stepped on a scaffold plank that collapsed, causing him to fall to the pavement below and sustain injuries. Claimant and his wife, derivatively, thereafter commenced this action, asserting negligence and, as relevant here, violations of Labor Law §§ 240(1) and 241(6). Following discovery, claimants moved for partial summary judgment with respect to Labor Law § 240(1) liability and defendant cross-moved for summary judgmentdismissing all causes of action. The Court of Claims granted claimants' motion and denied defendant's cross motion and defendant now appeals.
We affirm. Pursuant to Labor Law § 240(1), contractors and owners are required to provide adequate safety devices—such as scaffolding, ladders or hangers—to afford proper protection against elevation-related hazards, and the failure to do so will result in liability for any injuries that are proximately caused by such failure ( see Jackson v. Heitman Funds/191 Colonie LLC, 111 A.D.3d 1208, 1209, 976 N.Y.S.2d 283 [2013]; Silvia v. Bow Tie Partners, LLC, 77 A.D.3d 1143, 1144, 909 N.Y.S.2d 202 [2010] ). On this motion for partial summary judgment, defendant concedes that claimants demonstrated a prima facie showing of entitlement to judgment upon the collapse of the scaffold and, thus, the burden shifted to it to raise a question of fact about whether there was a statutory violation and whether claimant's own acts or omissions were the sole proximate cause of his accident ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003]; Rosier v. Stoeckeler, 101 A.D.3d 1310, 1312, 957 N.Y.S.2d 742 [2012] ).
To that end, defendant alleged that claimant was recalcitrant in, among other things, failing to use an available safety harness. With respect to such defense, liability pursuant to Labor Law § 240(1) does not attach when safety devices are readily available at the work site and a claimant knows that he or she is expected to use them but, for no good reason, chooses not to and such omission is the sole proximate cause of the accident ( see Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010]; Portes v. New York State Thruway Auth., 112 A.D.3d 1049, 1050, 976 N.Y.S.2d 232 [2013], lv. dismissed22 N.Y.3d 1167, 985 N.Y.S.2d 469, 8 N.E.3d 845 [2014]; Silvia v. Bow Tie Partners, LLC, 77 A.D.3d at 1144, 909 N.Y.S.2d 202). However, where a device intended to support a worker at an elevated height fails and that failure is a proximate cause of the accident, it is “conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant's] injury) to occupy the same ground as a [claimant's] sole proximate cause for the injury” (Portes v. New York State Thruway Auth., 112 A.D.3d at 1051, 976 N.Y.S.2d 232, quoting Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 290, 771 N.Y.S.2d 484, 803 N.E.2d 757).
Here, the facts are undisputed that, in an effort to assist with the construction of a platform, claimant stepped onto a plank on the existing scaffold, which was the primary safety device erected for the work, and the plank collapsed, causing claimant to fall and sustain his injuries. Accordingly, claimant's decision not to wear an available safety harness, or employ other safety measures that might have been available, could not have been the sole proximate cause of the accident, and the Court of Claims correctly awarded claimants partial summary judgment on the issue of liability with respect to their Labor Law § 240(1) claim ( see Hagins v. State of New York, 81 N.Y.2d 921, 922–923, 597 N.Y.S.2d 651, 613 N.E.2d 557 [1993]; Portes v. New York State Thruway Auth., 112 A.D.3d at 1050–1051, 976 N.Y.S.2d 232; Hanvey v. Falke's Quarry, Inc., 50 A.D.3d 1237, 1238 n., 854 N.Y.S.2d 819 [2008]; Kouros v. State of New York, 288 A.D.2d 566, 567–568, 732 N.Y.S.2d 277 [2001] ). Similarly, because claimant's actions could not constitute the sole proximate cause of his accident, the Court of Claims did not err in denying defendant's motion for summaryjudgment with respect to claimants' Labor Law § 241(6) cause of action.
ORDERED that the order is affirmed, without costs. McCARTHY, EGAN JR., LYNCH and CLARK, JJ., concur.