Opinion
May 10, 1999
Appeal from Order of Supreme Court, Niagara County, Fahey, J. — Summary Judgment.
PRESENT: PINE, J. P., HAYES, WISNER, PIGOTT, JR., AND BALIO, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs' motion for partial summary judgment on liability under Labor Law § 240 Lab. (1). Plaintiffs failed to establish that the absence of, or defect in, a safety device was the proximate cause of the injuries to Getulio Ghiandoni (plaintiff) ( see, Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, rearg denied 92 N.Y.2d 875; Felker v. Corning Inc., 90 N.Y.2d 219, 224; Jackson v. Solvay Free Union School Dist., ___ A.D.2d ___ [decided Dec. 31, 1998]). Moreover, even assuming, arguendo, that plaintiffs met their initial burden, we conclude that defendant City of Niagara Falls raised an issue of fact whether plaintiff's own action was the sole proximate cause of plaintiff's injuries ( see, Weininger v. Hagedorn Co., supra, at 960).