Opinion
2002-00694
Argued March 3, 2003.
September 8, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated October 25, 2001, which denied their motion for summary judgment on the issue of liability.
Lance E. Barnett, New York, N.Y., for appellants.
McDonald, Carroll, Cohen Rayhill (Conway, Farrell, Curtin Kelly, P.C., New York, N.Y. [Jonathan T. Uejio] of counsel), for respondents.
Before: A. GAIL PRUDENTI, P.J., NANCY E. SMITH, LEO F. McGINITY, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
To prevail on a cause of action under Labor Law § 240(1), a plaintiff must show a violation of the statute, and that such violation was a proximate cause of his or her injuries ( see Bland v. Manocherian, 66 N.Y.2d 452; Skalko v. Marshall's Inc., 229 A.D.2d 569, 570). A plaintiff cannot prevail on a motion for summary judgment under Labor Law § 240(1) if there is any view of the evidence which would permit a finding that the defendant's violation of that statute was not a proximate cause of the plaintiff's accident ( see Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 524; Mejia v. African M.E. Allen Church, 271 A.D.2d 583, 584).
Where, as here, there is inconsistent deposition testimony as to how the accident occurred, a triable issue of fact regarding the proximate cause of the accident exists, precluding summary judgment ( see Bland v. Manocherian, supra; Williams v. Dover Home Improvement, 276 A.D.2d 626, 627).
PRUDENTI, P.J., SMITH, McGINITY and COZIER, JJ., concur.