Opinion
2016–07877 Index No. 16797/11
11-18-2020
Edison MANCELLARI, appellant, v. CHURCH OF ASCENSION, defendant, Preserve Building Restoration Management Incorporated, respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Joseph Laird, Patrick J. Lawless, and I. Elie Herman of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Joseph Laird, Patrick J. Lawless, and I. Elie Herman of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained while performing roofing work. Following a trial, the jury found that although the defendants violated Labor Law § 240(1), the violation was not a substantial factor in causing the incident, and that the plaintiff was the sole proximate cause of the accident. A judgment was entered in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals.
The determination that a verdict is contrary to the weight of the evidence "is itself a factual determination based on the reviewing court's conclusion that the original trier of fact has incorrectly assessed the evidence" ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145 ). A jury verdict should not be set aside as contrary to the weight of the evidence unless it "could not have been reached on any fair interpretation of the evidence" ( Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [internal quotation marks omitted]; see Killon v. Parrotta, 28 N.Y.3d 101, 107, 42 N.Y.S.3d 70, 65 N.E.3d 41 ).
Where an accident is caused by a violation of Labor Law § 240(1), the plaintiff's own negligence does not furnish a defense; however, there can be no liability under Labor Law § 240(1) where the plaintiff's own actions are the sole proximate cause of the accident (see Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 ; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 ; 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 ). To recover damages for a violation of Labor Law § 240(1), a plaintiff must establish that the statute was violated and that such violation was a proximate cause of the injury (see Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d at 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 ; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d at 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 ; Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 287, 771 N.Y.S.2d 484, 803 N.E.2d 757 ).
Here, as it cannot be said that the jury's verdict could not have been reached on any fair interpretation of the evidence, the verdict was not contrary to the weight of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d at 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 ; Luna v. 4300 Crescent, LLC, 174 A.D.3d 881, 884, 107 N.Y.S.3d 115 ).
The plaintiff's remaining contentions are unpreserved for appellate review.
LEVENTHAL, J.P., ROMAN, COHEN and MALTESE, JJ., concur.