Opinion
CA 04-02600.
June 10, 2005.
Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered August 12, 2004 in a personal injury action. The order granted plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law § 240 (1).
WEBSTER SZANYI LLP, BUFFALO (KEVIN A. SZANYI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
COLLINS MAXWELL, L.L.P., BUFFALO (ALAN D. VOOS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Before: Scudder, J.P., Kehoe, Martoche, Smith and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: In this action to recover damages for injuries sustained by Gregory D. Owczarek (plaintiff) when he fell from scaffolding at the site of a wall demolition, defendants appeal from an order granting plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Supreme Court properly granted plaintiffs' motion. Plaintiffs met their initial burden by demonstrating that plaintiff was engaged in a protected activity and that his accident involved an elevation-related hazard within the ambit of the statute ( see Ward v. Cedar Key Assoc., L.P., 13 AD3d 1098, citing Melber v. 6333 Main St., 91 NY2d 759, 762-763). "Plaintiff[s] further established the requisite causal link between [plaintiff's] injuries and the violation of defendants' non-delegable duty to ensure that the [scaffolding] was `so constructed, placed and operated as to give proper protection' to plaintiff" ( id. at 1098; see Patrick v. People, Inc., 11 AD3d 990, 990-991). Defendants failed to raise a triable issue of fact concerning whether the statute was violated or whether the conduct of plaintiff was the sole proximate cause of his injuries ( see Ward, 13 AD3d 1098; Patrick, 11 AD3d at 991; Alligood v. Hospitality W., LLC, 8 AD3d 1102; Dahl v. Armor Bldg. Supply, 280 AD2d 970, 971). Instead, defendants established merely that plaintiff might have been comparatively at fault for the accident, which "`has no bearing on defendants' liability under the statute'" ( Alligood, 8 AD3d at 1102).