Opinion
12141 Index No. 161654/14, 595123/15, 595166/15, 595184/15 Case No. 2019-03750
10-22-2020
Robert DESCHAINE, Plaintiff–Respondent, v. TRICON CONSTRUCTION, LLC, et al., Defendants–Appellants, National Realty & Development Corp., et al., Defendants–Respondents. [And Other Third–Party Actions]
Lester Schwab Katz & Dwyer, LLP, New York (Jonathan Glasser of counsel), for appellants. Goldblatt & Associates, P.C., Mohegan Lake (Kenneth B. Goldblatt of counsel), for Robert Deschaine, respondent. Gallo Vitucci Klar, LLP, New York (Sara R. David of counsel), for Michael Boyle, respondent. Marshall Conway Bradley Gollub & Weismann, P.C., New York (Shannon L. Saks of counsel), for Dollar Tree Stores, Inc., respondent.
Lester Schwab Katz & Dwyer, LLP, New York (Jonathan Glasser of counsel), for appellants.
Goldblatt & Associates, P.C., Mohegan Lake (Kenneth B. Goldblatt of counsel), for Robert Deschaine, respondent.
Gallo Vitucci Klar, LLP, New York (Sara R. David of counsel), for Michael Boyle, respondent.
Marshall Conway Bradley Gollub & Weismann, P.C., New York (Shannon L. Saks of counsel), for Dollar Tree Stores, Inc., respondent.
Friedman, J.P., Kern, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 15, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim as against defendants Tricon Construction, LLC and C.P. Plaza Limited Partnership, Inc., unanimously affirmed, without costs.
Plaintiff made a prima facie showing that defendants failed to provide him with proper protection from the risk of falling from a scaffold and that this failure was a proximate cause of his injuries, as it is undisputed that the scaffold from which he fell lacked side safety rails and that plaintiff was not provided with any other protective devices ( Vergara v. SS 133 W. 21, LLC , 21 A.D.3d 279, 800 N.Y.S.2d 134 [1st Dept. 2005] ).
In opposition, defendants failed to raise an issue of fact. Given the inadequacy of the scaffold, even if, as they contend, plaintiff suffered from a preexisting medical condition, that condition could not be the sole proximate cause of his injuries (see Lajqi v. New York City Tr. Auth., 23 A.D.3d 159, 805 N.Y.S.2d 5 [1st Dept. 2005] ; see also Vail v. 1333 Broadway Assoc. L.L.C. , 105 A.D.3d 636, 963 N.Y.S.2d 647 [1st Dept. 2013] ).