Summary
In Dedndreaj v ABC Carpet & Home (93 AD3d 487, 487 [1st Dept 2012]), the First Department found that even if the plaintiff was negligent, he was entitled to summary judgment where the defendants did not provide an adequate safety device and this "proximately caused a pipe that was in the process of being hoisted to fall and strike him."
Summary of this case from Thierry v. BAM GO Developers, LLCOpinion
2012-03-13
Agim DEDNDREAJ, Plaintiff–Appellant, v. ABC CARPET & HOME, et al., Defendants–Respondents.
Block O'Toole & Murphy, LLP, New York (David L. Scher of counsel), for appellant. Burke, Gordon & Conway, White Plains (Michael G. Conway of counsel), for ABC Carpet & Home, respondent.
Block O'Toole & Murphy, LLP, New York (David L. Scher of counsel), for appellant. Burke, Gordon & Conway, White Plains (Michael G. Conway of counsel), for ABC Carpet & Home, respondent. Lester Schwab Katz & Dwyer, LLP, New York (Howard R. Cohen of counsel), for Deegan Overhead Doors Company Inc., respondent.TOM, J.P., SAXE, ACOSTA, DeGRASSE, ROMN, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered April 7, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff established his prima facie entitlement to summary judgment by showing that defendants' failure to provide an adequate safety device proximately caused a pipe that was in the process of being hoisted to fall and strike him ( see Arnaud v. 140 Edgecomb LLC, 83 A.D.3d 507, 922 N.Y.S.2d 292 [2011] ).
In opposition, defendants failed to raise a triable issue of fact. Even assuming that plaintiff disregarded warnings by walking through the passageway and under the pipe, such conduct was not the sole proximate cause of the injury ( see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556 [1993] ). Nor may defendants rely upon the “recalcitrant worker” defense given that plaintiff was following his superior through the passageway, which was the only means of exiting the room ( see Ramirez v. Shoats, 78 A.D.3d 515, 517, 911 N.Y.S.2d 310 [2010] ).