Opinion
2019–02862 Claim No. 128021
08-19-2020
Antonio PALAMAR, Appellant, v. STATE of New York, Respondent.
Roy L. Silverberg (Lisa M. Comeau, Garden City, NY, of counsel), for appellant. Smith Sovik Kendrick & Sugnet P.C., Syracuse, N.Y. (Daniel R. Ryan of counsel), for respondent.
Roy L. Silverberg (Lisa M. Comeau, Garden City, NY, of counsel), for appellant.
Smith Sovik Kendrick & Sugnet P.C., Syracuse, N.Y. (Daniel R. Ryan of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Stephen J. Mignano, J.), dated December 18, 2018. The order, insofar as appealed from, denied the claimant's cross motion for summary judgment on the issue of liability on so much of the claim as alleged a violation of Labor Law § 240(1).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The claimant allegedly sustained personal injuries when he fell from a crossbeam while performing sandblasting work on a bridge owned by the State of New York. The claimant subsequently commenced this claim to recover damages for personal injuries, alleging, inter alia, a violation of Labor Law § 240(1). The defendant moved for summary judgment dismissing the claim, and the claimant cross-moved for summary judgment on the issue of liability on so much of the claim as alleged a violation of Labor Law § 240(1). The Court of Claims, among other things, denied the claimant's cross motion. The claimant appeals.
" ‘ Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites’ " ( Corchado v. 5030 Broadway Props., LLC, 103 A.D.3d 768, 768, 962 N.Y.S.2d 185, quoting McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 ). "To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries" ( Nunez v. City of New York, 100 A.D.3d 724, 724, 954 N.Y.S.2d 163 [internal quotation marks omitted] ). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)" ( Treu v. Cappelletti, 71 A.D.3d 994, 997, 897 N.Y.S.2d 199 ; see Loretta v. Split Dev. Corp., 168 A.D.3d 823, 824, 92 N.Y.S.3d 92 ).
Here, the claimant established his prima facie entitlement to judgment as a matter of law on the issue of liability on so much of the claim as alleged a violation of Labor Law § 240(1) by submitting evidence that he fell from a crossbeam and onto a work platform below, and that the failure to provide him with an adequate safety device proximately caused his injuries. In opposition, however, the respondent raised a triable issue of fact as to the manner in which the accident occurred and whether the claimant's own actions were the sole proximate cause of the accident (see Loretta v. Split Dev. Corp., 168 A.D.3d at 825, 92 N.Y.S.3d 92 ; Corchado v. 5030 Broadway Props., LLC, 103 A.D.3d at 769, 962 N.Y.S.2d 185 ). Accordingly, we agree with the Court of Claims' determination to deny the claimant's cross motion for summary judgment on the issue of liability on so much of the claim as alleged a violation of Labor Law § 240(1).
SCHEINKMAN, P.J., MILLER, MALTESE and BARROS, JJ., concur.