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Robinson v. NAB Construction Corp.

Appellate Division of the Supreme Court of New York, First Department
Dec 13, 1994
210 A.D.2d 86 (N.Y. App. Div. 1994)

Opinion

December 13, 1994

Appeal from the Supreme Court, Bronx County (Jerry Crispino, J.).


Plaintiff, a construction worker, is entitled to summary judgment here on the issue of liability under Labor Law § 240 (1), since the record supports her claim that the scaffold-ladder at issue was defective due to lack of safety devices and that such defect was a proximate cause of her injuries, and defendants failed to demonstrate the existence of any issue of fact (McGurk v Turner Constr. Co., 127 A.D.2d 526; Whalen v Sciame Constr. Co., 198 A.D.2d 501; see also, Nohejl v 40 W. 53rd Partnership, 205 A.D.2d 462).

Labor Law § 240 (1) imposes absolute liability on building owners, construction contractors, and their agents with regard to elevation-related risks to workers at construction sites (Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 521; Bland v Manocherian, 66 N.Y.2d 452, 459). Evidence of rain, or other "`concurrent cause'", at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her section 240 (1) claim (Iannelli v Olympia York Battery Park Co., 190 A.D.2d 775, 776, quoting Joyce v Rumsey Realty Corp., 17 N.Y.2d 118, 122). If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants' negligence in failing to provide the statutorily-prescribed safety measures.

Furthermore, plaintiff should not be denied summary judgment due to minor, immaterial inconsistencies in her testimony. Where a plaintiff is the sole witness to the occurrence that is the subject of her lawsuit, her inconsistent testimony may create a triable issue of fact as to credibility (Antunes v 950 Park Ave. Corp., 149 A.D.2d 332, 333; Rodriguez v New York City Hous. Auth., 194 A.D.2d 460, 462). However, here it is uncontested that she slipped and fell off the unsafe scaffold-ladder while it was raining; the questions of whether the rain began before or during her descent from the scaffold-ladder and precisely how she attempted to break her fall are immaterial on this Labor Law § 240 (1) claim, absent a showing that a bona fide credibility issue exists (Figueroa v Manhattanville Coll., 193 A.D.2d 778, 779; see also, Whalen v Sciame Constr. Co., supra).

Finally, the affidavit of defendants' expert as to plaintiff's comparative negligence also failed to provide a basis for denial of summary judgment. The expert's opinion lacked probative force due to its speculative, conclusory nature (see, Fallon v Hannay Son, 153 A.D.2d 95, 102), and was also irrelevant, since comparative negligence is not a defense against a Labor Law § 240 (1) claim (Zimmer v Chemung County Performing Arts, supra; Liverpool v S.P.M. Envtl., 189 A.D.2d 645, 646, citing Public Adm'r of Bronx County v Trump Vil. Constr. Corp., 177 A.D.2d 258; Wieszchowski v Skidmore Coll., 147 A.D.2d 822).

Concur — Wallach, J.P., Asch, Rubin and Williams, JJ.


Summaries of

Robinson v. NAB Construction Corp.

Appellate Division of the Supreme Court of New York, First Department
Dec 13, 1994
210 A.D.2d 86 (N.Y. App. Div. 1994)
Case details for

Robinson v. NAB Construction Corp.

Case Details

Full title:GLORIA ROBINSON, Appellant, v. NAB CONSTRUCTION CORP. et al., Respondents…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 13, 1994

Citations

210 A.D.2d 86 (N.Y. App. Div. 1994)
620 N.Y.S.2d 337

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