Opinion
December 13, 1994
Appeal from the Supreme Court, Bronx County (Jerry Crispino, J.).
Plaintiff, a construction worker, is entitled to summary judgment here on the issue of liability under Labor Law § 240 (1), since the record supports her claim that the scaffold-ladder at issue was defective due to lack of safety devices and that such defect was a proximate cause of her injuries, and defendants failed to demonstrate the existence of any issue of fact (McGurk v Turner Constr. Co., 127 A.D.2d 526; Whalen v Sciame Constr. Co., 198 A.D.2d 501; see also, Nohejl v 40 W. 53rd Partnership, 205 A.D.2d 462).
Labor Law § 240 (1) imposes absolute liability on building owners, construction contractors, and their agents with regard to elevation-related risks to workers at construction sites (Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 521; Bland v Manocherian, 66 N.Y.2d 452, 459). Evidence of rain, or other "`concurrent cause'", at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her section 240 (1) claim (Iannelli v Olympia York Battery Park Co., 190 A.D.2d 775, 776, quoting Joyce v Rumsey Realty Corp., 17 N.Y.2d 118, 122). If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants' negligence in failing to provide the statutorily-prescribed safety measures.
Furthermore, plaintiff should not be denied summary judgment due to minor, immaterial inconsistencies in her testimony. Where a plaintiff is the sole witness to the occurrence that is the subject of her lawsuit, her inconsistent testimony may create a triable issue of fact as to credibility (Antunes v 950 Park Ave. Corp., 149 A.D.2d 332, 333; Rodriguez v New York City Hous. Auth., 194 A.D.2d 460, 462). However, here it is uncontested that she slipped and fell off the unsafe scaffold-ladder while it was raining; the questions of whether the rain began before or during her descent from the scaffold-ladder and precisely how she attempted to break her fall are immaterial on this Labor Law § 240 (1) claim, absent a showing that a bona fide credibility issue exists (Figueroa v Manhattanville Coll., 193 A.D.2d 778, 779; see also, Whalen v Sciame Constr. Co., supra).
Finally, the affidavit of defendants' expert as to plaintiff's comparative negligence also failed to provide a basis for denial of summary judgment. The expert's opinion lacked probative force due to its speculative, conclusory nature (see, Fallon v Hannay Son, 153 A.D.2d 95, 102), and was also irrelevant, since comparative negligence is not a defense against a Labor Law § 240 (1) claim (Zimmer v Chemung County Performing Arts, supra; Liverpool v S.P.M. Envtl., 189 A.D.2d 645, 646, citing Public Adm'r of Bronx County v Trump Vil. Constr. Corp., 177 A.D.2d 258; Wieszchowski v Skidmore Coll., 147 A.D.2d 822).
Concur — Wallach, J.P., Asch, Rubin and Williams, JJ.