Opinion
December 21, 1993
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
Plaintiff's uncontradicted testimony as to the collapse of the scaffold was sufficient to make out a prima facie case (see, Rodriguez v New York City Hous. Auth., 194 A.D.2d 460, 462; Figueroa v Manhattanville Coll., 193 A.D.2d 778, 779), and the affirmation of defendant's attorney was insufficient to demonstrate the existence of any material issues of fact (see, Frierson v Concourse Plaza Assocs., 189 A.D.2d 609, 610). Under the circumstances, there was no view of the evidence that plaintiff's rocking of the scaffold in order to move it was an unforeseeable intervening cause of the accident (cf., Desrosiers v Barry, Bette Led Duke, 189 A.D.2d 947, 948). To the extent that defendant's argument may be construed as urging that plaintiff was contributorily negligent, such is not a defense to this action (Stolt v General Foods Corp., 81 N.Y.2d 918, 920; Liverpool v S.P.M. Envtl., 189 A.D.2d 645, 646).
Concur — Carro, J.P., Rosenberger, Kassal and Rubin, JJ.