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finding that "arguably conflicting accounts" provided by Plaintiff's witness created an issue of fact as to whether Plaintiff's conduct was the proximate cause of the accident
Summary of this case from Sports Tech. Applications, Inc. v. MLB Advanced Media, L.P.Opinion
No. 132 SSM 17.
09-05-2017
Frank VALENTE et al., Respondents, v. LEND LEASE (U.S.) CONSTRUCTION LMB, INC., et al., Appellants, et al., Defendants.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac of counsel), for respondents.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac of counsel), for respondents.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and plaintiffs' motion for partial summary judgment on liability pursuant to Labor Law § 240(1) denied. The certified question should be answered in the negative.
We agree with the Appellate Division that the fall of Frank Valente (plaintiff) was the result of an elevation-related risk for which Labor Law § 240(1) provides protection. We further conclude, however, that there is a triable issue of fact whether plaintiff's "own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident" ( Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ). Viewing the facts in the light most favorable to defendants, as we must (see generally Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ), we conclude that plaintiff's foreman arguably provided conflicting accounts of whether plaintiff had "adequate safety devices available," whether "he knew both that they were available and that he was expected to use them," whether "he chose for no good reason not to do so," and whether "had he not made that choice he would not have been injured" ( Cahill, 4 N.Y.3d at 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 ).
Chief Judge DiFIORE and Judges RIVERA, STEIN, FAHEY, GARCIA and WILSON concur; Judge FEINMAN taking no part.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11 ), order reversed, with costs, plaintiffs' motion for partial summary judgment on liability pursuant to Labor Law § 240(1) denied, and certified question answered in the negative, in a memorandum.