Opinion
CA 02-01762
March 21, 2003.
Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered May 15, 2002, which granted plaintiffs' motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1).
CHELUS, HERDZIK, SPEYER, MONTE PAJAK, P.C., BUFFALO (THOMAS J. SPEYER OF COUNSEL), FOR DEFENDANT-APPELLANT.
LEWIS LEWIS, P.C., BUFFALO (MICHAEL J. SKONEY OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, SCUDDER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is reversed on the law without costs and the motion is denied.
Memorandum:
Supreme Court erred in granting plaintiffs' motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1). Plaintiffs met their initial burden on the motion by submitting the affidavit of Terry Manning (plaintiff), who averred that he stepped onto a scaffold plank that was not properly secured and that the plank "see-sawed," causing him to fall approximately eight feet to the ground (see Franklin v. Dormitory Auth. of State of N.Y., 291 A.D.2d 854). Defendant, however, raised triable issues of fact by submitting the accident report and deposition testimony of plaintiff's foreman. The accident report, also signed by plaintiff, described the accident as having occurred when plaintiff "walked off [a] scaffold plank." According to the deposition testimony of plaintiff's foreman, plaintiff told him that he had "walked off the end of the planking" and, upon inspecting the scaffold after the accident, plaintiff's foreman found no problem with the scaffold and that no planks were shifted, broken or out of place. Defendant thus raised triable issues of fact whether the accident was caused by a defect in the scaffold (see Felker v. Corning, Inc., 90 N.Y.2d 219, 224; Loveless v. American Ref-Fuel Co. of Niagara, 299 A.D.2d 819; Salotti v. Wellco, Inc., 273 A.D.2d 862; Madinya v. Consolidated Edison Co. of N.Y., 202 A.D.2d 356; see also Hilbert v. Shalen Packing Co., 267 A.D.2d 940, 941) and whether the actions of plaintiff were the sole proximate cause of his injuries (see Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, rearg denied 92 N.Y.2d 875; Salotti, 273 A.D.2d at 862-863).
We respectfully dissent. We conclude that as a matter of law it cannot be said that the actions of Terry Manning (plaintiff) were the sole proximate cause of the accident and that it therefore is immaterial whether he walked or fell off the scaffolding for purposes of defendant's liability under Labor Law § 240(1). "Plaintiff's alleged contributory negligence has no bearing on defendant['s] liability under the statute" (Lang v. Mancuso Son, 298 A.D.2d 960, 961; see Oaks v. Pioneer Dev. Co., 294 A.D.2d 897; Steves v. Campus Indus., 288 A.D.2d 914, 915; Kazmierczak v. Town of Clarence, 286 A.D.2d 955, 955-956). Nor is there any allegation that plaintiff's fall was intentional or the result of recalcitrant conduct on plaintiff's part. Where, as here, there is no possible view of the evidence that the violation by defendant of its statutory duty to provide proper protection was not a proximate cause of the accident (see Steves, 288 A.D.2d at 915; Kazmierczak, 286 A.D.2d at 956), plaintiffs are entitled to partial summary judgment on the issue of liability pursuant to Labor Law § 240(1). We therefore would affirm the order granting plaintiffs' motion seeking that relief.