Opinion
July 10, 1995
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contentions, the trial court did not err in failing to grant summary judgment in his favor on the issue of liability under Labor Law § 240, because there exists a question of fact as to whether the violation of this statutory provision was a proximate cause of the plaintiff's injuries. There was testimony at an examination before trial that the plaintiff fell when one of his coworkers was attempting to lower him on a "Hi-Lo." The Hi-Lo, however, had apparently bumped the scaffolding which then collapsed. Additional, testimony established that prior to the accident the parties had not used a Hi-Lo to raise or lower people on the scaffolding and that the most secure way to get up and down was to climb the scaffolding structure. Given this evidence, a reasonable fact-finder might conclude that the coworker's conduct was the sole proximate cause of the plaintiff's injuries or that the coworker's conduct constituted an unforeseeable superseding, intervening act (see, Anderson v. Schul/Mar Constr. Corp., 212 A.D.2d 493; Richardson v. Matarese, 206 A.D.2d 353; Styer v. Vita Constr., 174 A.D.2d 662; Mack v. Altmans Stage Light. Co., 98 A.D.2d 468). Rosenblatt, J.P., Ritter, Copertino and Hart, JJ., concur.