Opinion
2003-03420
Argued September 16, 2003.
October 14, 2003.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Lewis, J.), dated March 14, 2003, which granted the plaintiff's motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action.
Morris, Duffy, Alonso Faley, LLP, New York, N.Y. (Yolanda L. Himmelberger and Jeoungson Kim of counsel), for appellants.
David H. Perecman Associates, PLLC, New York, N.Y. (David H. Perecman and Rudolf B. Radna of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., NANCY E. SMITH, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is denied.
In order to establish prima facie entitlement to judgment as a matter of law on a cause of action pursuant to Labor Law § 240(1), a plaintiff must provide evidence that the statute was violated and that the violation was the proximate cause of his or her injuries ( see Peter v. Nisseli Realty Co., 300 A.D.2d 289, Wagner v. Skanska Constr. Co., 289 A.D.2d 324, 325). If a reasonable factfinder could conclude that the plaintiff's own actions were the sole proximate cause of his or her injuries, the plaintiff is not entitled to summary judgment on the issue of liability ( see Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960). Here, issues of fact exist regarding the manner in which the plaintiff fell from the ladder, due in part to his inconsistent deposition testimony with respect to the events leading up to the fall, and his inability to recall the fall, precluding a determination that the plaintiff is entitled to judgment as a matter of law. Accordingly, the plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action should have been denied ( id.; Costello v. Hapco Realty, Inc., 305 A.D.2d 445; Cudden v. Olympic Bd. Of Mgrs., 300 A.D.2d 616; Jiron v. China Buddhist Assn., 266 A.D.2d 347).
PRUDENTI, P.J., SMITH, FRIEDMANN and H. MILLER, JJ., concur.