Opinion
No. 61 SSM 58.
Decided January 19, 2010.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered June 5, 2009. The Appellate Division order, insofar as appealed from, affirmed an order of the Supreme Court, Chautauqua County (Timothy J. Walker, J.), to the extent it had granted plaintiffs motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). The following question was certified by the Appellate Division: "Was the order of this Court entered June 5, 2009 properly made?"
Plaintiff was injured while he was erecting a wall composed of concrete blocks at the Chautauqua County Jail. As he lifted a 40-pound block over his head and attempted to place it on the top row of the wall, plaintiff lost his balance and either fell or jumped to the concrete floor from the scaffold on which he was working. The scaffold was approximately six feet from the floor and did not have a restraint bar.
The Appellate Division concluded that the absence of guard-rails on the scaffold constituted a violation of Labor Law § 240 (1).
Holly v County of Chautauqua, 63 AD3d 1558, reversed.
Hodgson Russ LLP, Buffalo ( Ryan K. Cummings of counsel), for appellants.
Lipsitz Green Scime Cambria LLP, Buffalo ( John A. Collins of counsel), for respondents.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and plaintiffs' motion for partial summary judgment as to liability on their Labor Law § 240 (1) claim denied. The certified question should be answered in the negative.
While we agree with the Appellate Division that there are no questions of fact regarding proximate cause, triable issues of fact do exist as to whether the scaffolding defendants supplied provided proper protection under Labor Law § 240 (1) ( see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288; Davis v Brunswick, 52 AD3d 1231, 1232 [4th Dept 2008]).
In memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order, insofar as appealed from, reversed, etc.