Rafael Batista, Appellant,v.Manhattanville College, et al., Respondents, The Female Academy of the Sacred Heart, Defendant.BriefN.Y.December 14, 2016 I .N1r. Sacheli's tesLi.mony tha~ he saw pine planks at the job site AFTER the acc~dent is insufficient to show that they were present at the tim,.e of the accident (Priestly v. Montfidre, 110 AD3d 493 [1 51 Dept. 2004]; Sanango v. 200 E. 16 St., 290 AD2d 228 [1st Dept. 2002]; !Sing v. Hanover Estates, 276 AD2d 394 [1st Dept. 2000]). I The First Department has held that where the collapse or breakage of an oJ~ect or instmmentality causes an accident. plaintiff's alleged failure to comply with a safety practice or ru1e does not provide a defense to a claim under the statute because the violation of the I statute constitutes a "more proximate cause of accident''. See, Berrios v. 735 Ave. of Amer., 82 AD3d 552-3 [1st Dept. 2011], citing Milewski v. Caio1a, 236 AD2d 320 [lSI Dept. 1997). scie also, Fabiani v. State, 123 AD3d 1262 (3d Dept. 2014]. i Miraglia~ we believe, was rightly decided. Here, it cannot be said that plaintiffs! use of spruce planking was the sole proximate oause of the accident. At most it constituted com~arative negligence. Carefully read, Mr. Sacheli 's testimony shows that it was not absolutely pro~ibited. True, in Miraglia, plaintifi's expert testified that even doubled planking would not hav'f been safe because the planks were not secl!Ied (36 AD3d at 457) . Still~ compliance with LabQr Law §240[1] mandates is the responsibility of the owner, general contractor and/or agen~l and a plaintiff's negligent decision cannot be the $ole proximate ~ause of an accident wh~re the mandates are not followed. General instructions not to perform a ce1tain act does not estaplish a defense to a Labor Law §240[1] claim, and equivocal testimony of defendant 's represen~atives, such as that given by Mr. Sacheli here, cannot establish that what plaintiff did was ,completely prohibited so as to make him a recalcitrant worker. l We are transmitting the records alld briefs to the Court under separate covel'. cc: Hon. Robert A Lifson Lewis Johs Avallone Aviles, LLP Attorneys for Manhattanville College 1 CA Plaza, Suite 225 Islandia, NY 11749 Thomas J. Bw-ke Esq. Burkew Conway Loccisano & Dillon Attorneys for T JR, Inc. 1 0 Bank Street, Suite 790 Vlhite Plains, NY 10606 Very truly yours, ~----Bnan J. Isaac ; 10