Fazekas v. Time Warner Cable, Inc.

Appeal and cross appeal from an order of the Supreme Court, Herkimer County (Norman I. Siegel, J.), entered November 3, 2014. The order denied the motion of plaintiffs for partial summary judgment, and denied in part the cross motion of defendant for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Contrary to the contentions of the parties, we conclude that Supreme Court properly denied that part of plaintiffs’ motion seeking partial summary judgment on the issue of liability on the Labor Law § 240 (1) cause of action and that part of defendant’s cross motion seeking summary judgment dismissing that cause of action. Liability under section 240 (1) “is contingent on a statutory violation and proximate cause” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 , 287 [2003]). If both elements are established, “contributory negligence cannot defeat the plaintiff’s claim” {id.). There can be no liability under Labor Law § 240 (1), however, “when there is no violation and the worker’s actions . . . are the ‘sole proximate cause’ of the accident” (id. at 290). It is therefore “conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation” (id.).

While we agree with plaintiffs that evidence that a ladder is “structurally sound and not defective is not relevant on the issue of whether it was properly placed” (Whalen v ExxonMobil Oil Corp., 50 AD3d 1553 , 1554 [2008] [internal quotation marks omitted]; see Woods v Design Ctr., LLC, 42 AD3d 876 , 877 [2007]; Petit v Board of Educ. of W. Genesee School Dist., 307 AD2d 749 , 749-750 [2003]), we conclude that there are triable issues of fact whether plaintiff’s actions were the sole proximate cause of his injuries (see Sistrunk v County of Onondaga, 89 AD3d 1552 , 1552 [2011]; Tronolone v Praxair, Inc., 22 AD3d 1031 , 1033 [2005]). Although defendant also raises the issue whether plaintiff was a recalcitrant worker, “[t]he controlling question ... is not whether plaintiff was ‘recalcitrant,’ but

Where, as here, a ladder slips and falls, causing a worker to fall from an elevated work site, the worker may assert a prima facie violation of Labor Law § 240 (1) on the ground that the ladder was not so placed as to give proper protection (see Kin v State of New York, 101 AD3d 1606 , 1607 [2012]; Morin v Machnick Bldrs., 4 AD3d 668 , 670 [2004]; Dahl v Armor Bldg. Supply, 280 AD2d 970 , 971 [2001]). When the evidence establishes, however, that a “plaintiff had adequate safety devices available; that he [or she] knew both that they were available and that he [or she] was expected to use them; that he [or she] chose for no good reason not to do so; and that had he [or she] not made that choice he [or she] would not have been injured,” there will be no liability under Labor Law § 240 (1) (Cahill, 4 NY3d at 40 ; see Gordon v Eastern Ry. Supply, 82 NY2d 555 , 563 [1993]; Piotrowski v McGuire Manor, Inc., 117 AD3d 1390 , 1390-1391 [2014]; cf. Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135 , 1137 [2008]). In such circumstances, the worker’s own conduct, rather than any violation of the Labor Law, is the sole proximate cause of the accident (see Cahill, 4 NY3d at 40 ).

In this case, we conclude that plaintiffs failed to meet their initial burden of establishing entitlement to partial summary judgment on the issue of liability on the Labor Law § 240 (1) cause of action inasmuch as they submitted evidence raising a triable issue of fact whether plaintiff’s conduct in “refusing to use available, safe and appropriate equipment” was the sole proximate cause of the accident (Gordon, 82 NY2d at 563 ; see generally Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]). Specifically, plaintiffs submitted deposition testimony from defendant’s customer, who purportedly owned the building on which plaintiff was working. The owner testified that, on the day of the accident, he advised plaintiff that the ladder was not placed in a safe position. The owner offered to retrieve safety equipment from his own truck that would help to remove ice from underneath the ladder and thereby stabilize the ladder. Plaintiff, however, rejected that offer. The owner also attempted to hold the ladder for plaintiff, but plaintiff again rejected the owner’s assistance.

It is well settled that the failure to follow an instruction by an employer or owner to avoid unsafe practices does not consti

Additionally, we agree with defendant that the court properly denied that part of plaintiff’s motion seeking partial summary judgment on the issue of liability on the Labor Law § 241 (6) cause of action. Even assuming, arguendo, that plaintiffs established that defendant violated certain Industrial Code regulations, any such violation “does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant’s negligence” (Puckett v County of Erie, 262 AD2d 964 , 965 [1999] [internal quotation marks omitted]; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 , 349 [1998]; Arenas v Bon-Ton Dept. Stores, Inc., 35 AD3d 1205 ,

Present — Scudder, P.J., Centra, Peradotto, Lindley and Valentino, JJ.