Opinion
April 8, 1996
Appeal from the Supreme Court, Kings County (Golden, J.).
Ordered that the order is affirmed, with one bill of costs.
Because the evidence establishes that the scaffold from which the plaintiff fell did not move, collapse, or otherwise fail to perform its function of supporting the plaintiff and his materials ( see, Whalen v. Sciame Constr. Co., 198 A.D.2d 501, 502; Dennis v. Beltrone Constr. Co., 195 A.D.2d 688; Hartley v. Spartan Concrete, 172 A.D.2d 586), the issue of whether the device provided proper protection within the meaning of Labor Law § 240 (1) is a question of fact for the jury ( see, e.g., Eckhoff v Consolidated Edison Co., 214 A.D.2d 698).
Moreover, a plaintiff cannot prevail on a motion for summary judgment on the issue of liability under Labor Law § 240 (1) if there is any view of the evidence which would permit a finding that the defendant's violation of that provision might not have been a proximate cause of the plaintiff's accident ( see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 524; Duda v Rouse Constr. Corp., 32 N.Y.2d 405, 410; Zeitner v. Herbmax Sharon Assocs., 194 A.D.2d 414; Golaszewski v. Cadman Plaza N., 136 A.D.2d 596). In the matter at bar, a question of fact has been raised by the defendant third-party plaintiff's Security Report ( see, e.g., Bernal v. City of New York, 217 A.D.2d 568; Richardson v Matarese, 206 A.D.2d 353; see also, Vencebi v. Waldorf Astoria Hotel Corp., 143 A.D.2d 1004). Mangano, P.J., Miller, Altman and Friedmann, JJ., concur.