Murray v. Arts Center & Theater of Schenectady, Inc.

Appeal from an order of the Supreme Court (Lynch, J.), entered December 22, 2009 in Albany County, which denied plaintiffs’ motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1).

Plaintiff John J. Murray (hereinafter plaintiff, an ironworker hired to assist in the fabrication and erection of structural steel for a theater renovation project, was working on the first story of the structure when he fell from a beam to a concrete floor 15 feet below and was injured. Plaintiff was wearing a harness and lanyards at the time of the accident, but he was not tied off to anything. Plaintiff, and his wife derivatively, commenced this action against the project’s owner, the owner’s agent and the contractors seeking to recover for plaintiff’s injuries.^[1] After joinder of issue and discovery, plaintiffs moved for partial summary judgment on the issue of Labor Law § 240 (1) liability. Supreme Court denied the motion, finding a question of fact as to whether plaintiffs failure to tie off was the sole proximate cause of his injuries. We now reverse and grant plaintiffs’ motion for partial summary judgment.

The failure to use the available harness cannot be considered the sole proximate cause of the accident where there is evidence that plaintiff had been instructed that he did not need to use it and no opposing evidence that, based on his training, prior practice and common sense, he knew or should have known to use it (see Pieri v B&B Welch Assoc., 74 AD3d 1727 ,1729 [2010]; Lantry v Parkway Plaza, 284 AD2d 697 , 698 [2001]). While “[Liability under [Labor Law §] 240 (1) does not attach when . . . safety devices . . . were readily available at the work site, . . . and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident” (Gallagher v New York Post, 14 NY3d 83 , 88 [2010]; see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 , 40 [2004]), here, plaintiff had a number of good reasons not to tie off his harness.

Plaintiff testified at his examination before trial that, according to his training as an ironworker, he was not expected to tie off when working at the height from which he fell, and that he had been told by his supervisor on the job that he was not required to be tied off at that height. Plaintiffs supervisor confirmed that plaintiff was not in violation of any job safety rules at the time of the accident despite the fact that he was not tied off. Notably, the contractors had agreed by contract to