Opinion
01-02586
Argued March 28, 2002
June 3, 2002
In an action to recover damages for personal injuries, etc., the defendant CD Unlimited, Inc., appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated February 6, 2001, as granted the plaintiffs' cross motion for partial summary judgment on the issue of liability on their Labor Law § 241(6) claims.
Hammill, O'Brien, Croutier, Dempsey Pender, P.C., Smithtown, N Y (Michael J. Pender and Wade T. Dempsey of counsel), for appellant.
Eisenberg, Margolis, Friedman Moses, New York, N.Y. (Steven B. Dorfman of counsel), for respondents.
NANCY E. SMITH, J.P., CORNELIUS J. O'BRIEN, LEO F. McGINITY, SANDRA L. TOWNES, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion is denied.
Generally, Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon an owner or general contractor to provide reasonable and adequate protection to workers, and a violation of an explicit and concrete provision of the Industrial Code by a participant in the construction project constitutes some evidence of negligence for which the owner or general contractor may be held vicariously liable (see Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343; Lorefrice v. Reckson Operator Partnership, 269 A.D.2d 572). However, the owner or general contractor may raise any valid defense to the imposition of liability under Labor Law § 241(6), including contributory and comparative negligence (see Rizzuto v. Wenger Contr. Co., supra). Here, contrary to the plaintiffs' contention, issues of fact exist as to the injured plaintiff's comparative negligence (see Rizzuto v. Wenger Contr. Co., supra; Long v. Forest-Fehlhaber, 55 N.Y.2d 154; Amirr v. Calcagno Constr. Co., 257 A.D.2d 585). Accordingly, the Supreme Court should have denied the plaintiffs' cross motion for partial summary judgment on the issue of liability on their Labor Law § 241(6) claims.
SMITH, J.P., O'BRIEN, McGINITY and TOWNES, JJ., concur.