Berrios v. 735 Avenue of the Americas, LLC

Defendants argue, for the first time on appeal, that Labor Law § 240 (1) is inapplicable to the facts of this case because there was no collapse of a scaffold. However, even if plaintiff was working on what would become a permanent part of the building, he was exposed to an elevation-related hazard; hé is therefore entitled to the protection of the statute (see e.g. John v Baharestani, 281 AD2d 114 , 119 [2001]). The I-beams, ribs, and plywood that, together with concrete, would become the second floor “served, conceptually and functionally, as an elevated platform or scaffold” (Becerra v City of New York, 261 AD2d 188 , 189 [1999]). Since “sound scaffolds ... do not simply break apart” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 , 286 [2003]), plaintiff met his initial burden on his

Defendants argue that there is a triable issue of fact as to the availability of safety harnesses (see Gallagher v New York Post, 55 AD3d 488 , 490 [2008], revd 14 NY3d 83 [2010]; but see Milewski v Caiola, 236 AD2d 320 [1997]). However, defendant general contractor admitted that there was no location to which a harness could have been tied. Therefore, defendants failed to raise the inference that plaintiffs failure to use a safety harness was the sole proximate cause of his injury (see Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561 , 564-565 [2008]). The affirmation of defendants’ attorney, asserting that there were places to which a safety harness could have been tied, is entitled to no evidentiary weight (see Zuckerman v City of New York, 49 NY2d 557 , 563 [1980]). Finally, even if plaintiff could be found recalcitrant for failing to use a harness, defendants’ “failure to provide proper safety [equipment] was a more proximate cause of the accident” (see Milewski, 236 AD2d at 320 ; see also Blake, 1 NY3d at 290 ). Concur — Gonzalez, EJ., Tom, Acosta, Richter and Román, JJ.