Opinion
2011-10-7
Juan MAZURETT and Theresa Mazurett, Plaintiffs–Respondents,v.ROCHESTER CITY SCHOOL DISTRICT, Defendant–Appellant.
Hurwitz & Fine, P.C., Buffalo (David R. Adams of Counsel), for Defendant–Appellant.Valerio & Kufta, P.C., Rochester (A. Vincent Buzard of Counsel), for Plaintiffs–Respondents.
Hurwitz & Fine, P.C., Buffalo (David R. Adams of Counsel), for Defendant–Appellant.Valerio & Kufta, P.C., Rochester (A. Vincent Buzard of Counsel), for Plaintiffs–Respondents.
MEMORANDUM:
Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Juan Mazurett (plaintiff) when he fell from a collapsing scaffold at a construction site on property owned by defendant. The accident occurred while plaintiff was attempting to climb the scaffold, which had been provided to him by his employer, the general contractor at the construction site. Defendant contends that Supreme Court erred in granting plaintiffs' motion seeking partial summary judgment on liability with respect to the Labor Law § 240(1) claim and erred in denying that part of defendant's cross motion seeking summary judgment dismissing the Labor Law § 240(1) and § 241(6) claims. We reject that contention.
Plaintiffs met their initial burden of establishing a prima facie violation of Labor Law § 240(1). The fact that the scaffold collapsed “is sufficient to establish as a matter of law that the [scaffold] was not so ‘placed ... as to give proper protection’ to plaintiff” pursuant to the statute ( Dean v. City of Utica, 75 A.D.3d 1130, 1131, 906 N.Y.S.2d 833; see Tapia v. Mario Genovesi & Sons, Inc., 72 A.D.3d 800, 801, 899 N.Y.S.2d 303; see also Cantineri v. Carrere, 60 A.D.3d 1331, 875 N.Y.S.2d 417). In opposition to the motion, defendant failed to raise a triable issue of fact whether plaintiff's “own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident” ( Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439). We reject defendant's contention that plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident. Although defendant submitted evidence that plaintiff was instructed to use a more stable scaffold and to use a ladder to ascend the scaffold, defendant failed to submit any evidence that plaintiff refused to use a particular scaffold or ladder that was provided to him. “The mere presence of [other safety devices] somewhere at the work[ ]site” does not satisfy defendant's duty to provide appropriate safety devices ( Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 524, 493 N.Y.S.2d 102, 482 N.E.2d 898, rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055; see Williams v. City of Niagara Falls, 43 A.D.3d 1426, 843 N.Y.S.2d 902; Whiting v. Dave Hennig, Inc., 28 A.D.3d 1105, 1106, 815 N.Y.S.2d 382). Even assuming, arguendo, that plaintiff was negligent, we
conclude that his own conduct cannot be deemed the sole proximate cause of the accident inasmuch as plaintiffs established that a statutory violation was a proximate cause of plaintiff's injuries ( see Blake 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; Calderon v. Walgreen Co., 72 A.D.3d 1532, 900 N.Y.S.2d 533, appeal dismissed 15 N.Y.3d 900, 912 N.Y.S.2d 568, 938 N.E.2d 1002).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.