The question thus becomes whether the coworker's request and ostensible insistence on using the ladder to avoid having to reposition the scissor lift may appropriately be considered as raising a triable question of fact on the issues of whether the scissor lift was readily available and whether plaintiff chose for no good reason not to use that safety device. Initially on that question, I agree with the majority that plaintiff's reliance on case law standing for the proposition that a worker is not the sole proximate cause of an accident where the worker performs a task in a particular manner at the insistence or direction of his or her foreperson or supervisor is misplaced (cf.DeRose v. Bloomingdale's Inc. , 120 A.D.3d 41, 46-47, 986 N.Y.S.2d 127 [1st Dept. 2014] ). That proposition is justified on the basis that, "[w]hen faced with an employer's instruction [or the demand of a person with supervisory authority] to use an inadequate device, many workers would be understandably reticent to object for fear of jeopardizing their employment and their livelihoods" ( id. at 47, 986 N.Y.S.2d 127 ; see e.g.Finocchi v. Live Nation Inc. , 204 A.D.3d 1432, 1434, 167 N.Y.S.3d 280 [4th Dept. 2022] ; Gutierrez v. 451 Lexington Realty LLC , 156 A.D.3d 418, 419, 66 N.Y.S.3d 463 [1st Dept. 2017] ; Gove v. Pavarini McGovern, LLC , 110 A.D.3d 601, 602-603, 973 N.Y.S.2d 617 [1st Dept. 2013] ).
While plaintiff testified that he asked an unidentified individual, whom he asserted was in charge of work on the floor and had directed him where to work, for another pair of stilts, he testified elsewhere that only Cabanas and "Julio" gave him any instructions on that day, raising issues of fact regarding his credibility and whether he indeed requested another pair of stilts. While it is disputed whether plaintiff was using his own stilts or his employer provided them, and it is further unclear whether the stilts failed because a screw came out while they were in use or because they had been jerry-rigged with a wire threaded through a bolt hole, any use of defective stilts or failure to properly inspect them to discern any such defect was not the sole proximate cause of the accident where, as here, no proper safety devices were provided ( DeRosa v. Bloomingdale's Inc., 120 A.D.3d 41, 45, 986 N.Y.S.2d 127 [1st Dept. 2014] ). Scaffolds were not available to plaintiff where they were in use by other workers (seeid. at 46–47, 986 N.Y.S.2d 127 ), and while ladders were available, no party points to any evidence contradicting plaintiff's testimony that they were not appropriate for the job.
Defendants have also failed to refute plaintiffs testimony that the lifeline was only approximately four feet long and they have submitted no evidence that there were appropriate anchorage points to which plaintiff could have tied off his lifeline while ascending or descending (see Martinez v Kingston 541, LLC, 210 A.D.3d 556, 556-557 [1st Dept 2022]; Gomez v Trinity Ctr. LLC, 195 A.D.3d 502, 503 [1st Dept 2021]; Anderson, 146 A.D.3d at 404; Garzon v Viola, 124 A.D.3d 715, 716-717 [2d Dept 2015]). With respect to the ladder, it cannot be deemed readily available for plaintiffs use in view of plaintiff s testimony that it had been moved from where plaintiff was working and was being used by other workers at the time of the accident (see Gonzalez v DOLP 205 Props. II, LLC, 206 A.D.3d 468, 470 [1st Dept 2022]; Lojano v Soiefer Bros. Realty Corp., 187 A.D.3d 1160, 1163 [2d Dept 2020]; Pena v Jane H. Goldman residuary Trust No. I., 158 A.D.3d 565, 565 [1st Dept 2018]; DeRose v Bloomingdale 's Inc., 120 A.D.3d 41, 46-47 [1st Dept 2014]; Zender, 46 A.D.3d at 1362). Nor does plaintiffs failure to wait for the other workers to finish using the ladder constitute the sole proximate cause of the accident in view of his testimony that he started climbing down at the direction of his supervisor, who was at the job site and was undoubtedly aware that plaintiff had no ladder at the time of his request (see Finocchi v Live Nation Inc., 204 A.D.3d 1432, 1433-1434 [4th Dept 2022]; Lojano, 187 A.D.3d at 1163; DeRose, 120 A.D.3d at 46-47; cf. Graziano v Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 1257-1258 [2d Dept 2019]).
"The sole proximate cause defense does not apply where a plaintiff was not provided with an adequate safety device as required by the Labor Law." DeRose v. Bloomingdale's Inc., 986 N.Y.S.2d 127, 130 (App. Div. 2014) (alterations omitted). Here, it is undisputed that no safety device was provided to Lawler.
As this Court recently explained, where, as here, a plaintiff establishes a prima facie case that Labor Law § 240 had been violated, the burden then shifts to defendant, who may "establish a sole proximate cause defense, [by] demonstrat[ing] that the plaintiff '(1) had adequate safety devices available, (2) knew both that the safety devices were available and that [the plaintiff was] expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had [the plaintiff] not made that choice'" (Verdugo v Fox Bldg. Group, Inc., 218 A.D.3d 1179, 1180 [4th Dept 2023], quoting Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1167-1168 [2020]). With respect to the first element," '[t]he sole proximate cause defense does not apply where [a] plaintiff was not provided with an adequate safety device as required by the Labor Law'" (DeRose v Bloomingdale's Inc., 120 A.D.3d 41, 45 [1st Dept 2014]) and, thus, "[i]n order to raise an issue of fact whether [a plaintiff's] own conduct was the sole proximate cause of the accident, [a] defendant [is first] required to establish that 'the safety devices that [the plaintiff] alleges were absent were readily available at the work site'" (Kin, 101 A.D.3d at 1607-1608). Here, there is no evidence-such as an expert affidavit or an admission by plaintiff-that there was equipment on site that was "adequate to allow plaintiff to safely complete his assigned task at the time of the accident" (Green v Evergreen Family Ltd. Partnership, 210 A.D.3d 1496, 1497 [4th Dept 2022]). Indeed, defendant concedes that it had provided no safety equipment at all to plaintiff, despite the nondelegable statutory duty to do so under Labor Law § 240 (1) (see Panek v County of Albany, 99 N.Y.2d 452, 457 [2003]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]), and that the ladder used by plaintiff, who was workin
In opposition, Walton Realty failed to raise an issue of fact whether plaintiff's conduct was the sole proximate cause of his injuries. As plaintiff was not provided with an adequate safety device, Walton Realty cannot avail itself of the sole proximate cause defense (seeDeRose v. Bloomingdale's Inc., 120 A.D.3d 41, 46, 986 N.Y.S.2d 127 [1st Dept. 2014] ). We have considered Walton Avenue's remaining arguments and find them unavailing.
To expect plaintiff to refuse the stage manager's demands "overlooks the realities of construction work" ( Gutierrez , 156 A.D.3d at 419, 66 N.Y.S.3d 463 ). "When faced with an ... instruction to use an inadequate device [or no device at all], many workers would be understandably reticent to object for fear of jeopardizing their employment and their livelihoods" ( DeRose v. Bloomingdale's Inc. , 120 A.D.3d 41, 47, 986 N.Y.S.2d 127 [1st Dept. 2014] ). Even assuming, arguendo, that plaintiff should have refused the stage manager's demand, we conclude that, at most, plaintiff's "alleged conduct would amount only to comparative fault and ... [could not] bar recovery under the statute" ( Schutt , 186 A.D.3d at 1029, 130 N.Y.S.3d 153 [internal quotation marks omitted]).
We note, in this regard, that any action on plaintiff's part in lifting the beam goes to the issue of comparative negligence, which is not a defense to a Labor Law § 240(1) claim, because the statute imposes absolute liability once a violation is shown (Bland v Manocherian, 66 NY2d 452, 460 [1985]). Moreover, plaintiff was under no duty to demand an alternate safety device on his own because "[t]o place that burden on employees would effectively eviscerate the protections that the legislature put in place" (DeRose v Bloomingdale's Inc., 120 AD3d 41, 47 [1st Dept 2014]). "Indeed, workers would be placed in a nearly impossible position if they were required to demand adequate safety devices from their employers or the owners of buildings on which they work" (id.).
Absolute liability protection for workers engaged in building construction is warranted since such workers "usually have no choice but to work with the equipment at hand, though danger looms large" ( Koenig v. Patrick Constr. Corp. , 298 N.Y. 313, 318–319, 83 N.E.2d 133 [1948] ). Comparative negligence may not be asserted as a defense (seeBland v. Manocherian , 66 N.Y.2d 452, 468, 497 N.Y.S.2d 880, 488 N.E.2d 810 [1985] ), and the sole proximate cause defense is inapplicable where, as here, a plaintiff has not been provided with adequate safety equipment as required by the Labor Law (seeDeRose v. Bloomingdale's, Inc. , 120 A.D.3d 41, 45, 986 N.Y.S.2d 127 [1st Dept. 2014] ; see alsoGrant v. Solomon R. Guggenheim Museum , 139 A.D.3d 583, 584, 33 N.Y.S.3d 183 [1st Dept. 2016] [where the plaintiff was never provided with proper safety devices, his use of a J-bar to move a crate into position could not be said to constitute the sole proximate cause of his accident and the plaintiff was therefore entitled to partial summary judgment]).Inasmuch as defendants have been shown to bear some degree of fault for defendants' accident, plaintiff is entitled to partial summary judgment on the section 240(1) claim.
Plaintiff's use of a ladder on a previous occasion does not raise an issue of fact because defendant failed to submit sufficient evidence showing that a ladder or other safety device was readily available on the day of the accident or that a ladder was an adequate safety device for the job (seeNoor v. City of New York , 130 A.D.3d 536, 539–540, 15 N.Y.S.3d 13 [1st Dept. 2015], lv dismissed 27 N.Y.3d 975, 31 N.Y.S.3d 451, 50 N.E.3d 919 [2016] ). Defendants also failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident, given the undisputed failure of the stairway to protect him (seeBlake v. Neighborhood Hous. Servs. of N.Y. City , 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ["Under Labor Law § 240(1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury"]; DeRose v. Bloomingdale's Inc., 120 A.D.3d 41, 45, 986 N.Y.S.2d 127 [1st Dept. 2014] ).