Opinion
2013-04-3
Andrzej GABRUS, appellant, v. NEW YORK CITY HOUSING AUTHORITY, et al., respondents.
Edelman & Edelman, P.C., New York, N.Y. (David M. Schuller of counsel), for appellant. Downing & Peck, P.C., New York, N.Y. (Brian A. McLoughlin of counsel), for respondents.
Edelman & Edelman, P.C., New York, N.Y. (David M. Schuller of counsel), for appellant. Downing & Peck, P.C., New York, N.Y. (Brian A. McLoughlin of counsel), for respondents.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated April 18, 2012, which denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) is granted.
The plaintiff, a worker employed by the nonparty Whitestone Contruction Corp., was working on the renovation of a six-story building owned by the defendant New York City Housing Authority. The defendant Bovis Lend Lease, LMB, Inc., was the general contractor on the project. On the morning of the accident, the drag line for a load of roofing material which was being lifted to the top of the building by means of a hoist became stuck as a load of material was nearing the top of the building. When the plaintiff went to free the drag line, the load of material broke apart and fell on him, causing personal injuries.
In moving for summary judgment on his Labor Law § 240(1) cause of action, the plaintiff was required to show that the statute was violated and that the violation was a proximate cause of his injuries ( see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085;Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757;Henry v. Eleventh Ave. L.P., 87 A.D.3d 523, 928 N.Y.S.2d 72;Kretowski v. Braender Condominium, 57 A.D.3d 950, 951, 871 N.Y.S.2d 304). In order to recover damages for violation of the statute, “[a] plaintiff must show that, at the time the object fell, it was ‘being hoisted or secured’ ” ( Mendez v. Jackson Dev. Group, Ltd., 99 A.D.3d 677, 678, 951 N.Y.S.2d 736, quoting Narducci v. Manhasset Bay Assocs., 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;see Kretowski v. Braender Condominium, 57 A.D.3d at 950–951, 871 N.Y.S.2d 304;Mendoza v. Bayridge Parkway Assoc., LLC, 38 A.D.3d 505, 831 N.Y.S.2d 485;Cruci v. General Elec. Co., 33 A.D.3d 838, 839, 824 N.Y.S.2d 105) or “ ‘required securing for the purposes of the undertaking’ ” ( Mendez v. Jackson Dev. Group, Ltd., 99 A.D.3d at 678, 951 N.Y.S.2d 736, quoting Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law under Labor Law § 240(1) by demonstrating that the load of material hoisted to the top of the six-story building was inadequately secured, and that the load fell on him, causing his injuries.
In opposition, the defendants did not raise a triable issue of fact as to whether the plaintiff's conduct was the sole proximate cause of the accident ( see Rivera v. 800 Alabama Ave., 70 A.D.3d 798, 799, 892 N.Y.S.2d 915;Triola v. City of New York, 62 A.D.3d 984, 986, 880 N.Y.S.2d 126;Chlebowski v. Esber, 58 A.D.3d 662, 663, 871 N.Y.S.2d 652;Kwang Ho Kim v. D & W Shin Realty Corp., 47 A.D.3d 616, 618, 852 N.Y.S.2d 138). In light of the statutory violation, even if the plaintiff were negligent in some respect, his comparative negligence would not bar liability under Labor Law § 240(1) ( see Dedndreaj v. ABC Carpet & Home, 93 A.D.3d 487, 488, 940 N.Y.S.2d 62;Kempisty v. 246 Spring Street, LLC, 92 A.D.3d 474, 474–475, 938 N.Y.S.2d 288;Karcz v. Klewin Bldg. Co., Inc., 85 A.D.3d 1649, 1651, 926 N.Y.S.2d 227;Castillo v. 62–25 30th Avenue Realty, LLC, 47 A.D.3d 865, 866, 850 N.Y.S.2d 616;Kwang Ho Kim v. D & W Shin Realty Corp., 47 A.D.3d at 619, 852 N.Y.S.2d 138;Moniuszko v. Chatham Green, Inc., 24 A.D.3d 638, 639, 808 N.Y.S.2d 696).
Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1).