Fulton v. Walton Street Associates

Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of plaintiff for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff established his initial entitlement to judgment in his favor as a matter of law by the submission of proof in evidentiary form that defendants violated the statute and that the violation was a proximate cause of his injury (see, Armstrong v Sherrill-Kenwood Water Disk, 135 AD2d 1081 ). Defendants thereafter failed to offer evidentiary proof in admissible form demonstrating that there are factual issues that require a trial (see, Zuckerman v City of New York, 49 NY2d 557 , 562). Defendants’ reliance on Smith v Hooker Chems. & Plastics Corp. ( 89 AD2d 361 , 365, appeal dismissed 58 NY2d 824 ) is misplaced because there has been no showing that plaintiff refused to use the safety devices that were provided by the owner or employer (see, Gordon v Eastern Ry. Supply, 82 NY2d 555 ; Stolt v General Foods Corp., 81 NY2d 918 , 920; Hagins v State of New York, 81 NY2d 921 , 922-923).