Calderon v. Walgreen Co.

72 A.D.3d 1532, 900 N.Y.S.2d 533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 2010
• Status: Published

Opinions

Appeal from an order of the Supreme Court, Monroe County (William E Eolito, J.), entered February 26, 2009 in a personal injury action. The order, insofar as appealed from, granted plaintiffs motion for partial summary judgment and denied in part defendants’ cross motion for summary judgment.

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

Memorandum: Flaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when the scaffold he was dismantling tipped backward, causing him to fall to the ground. Supreme Court properly granted plaintiffs motion seeking partial summary judgment on liability with respect to the Labor Law § 240 (1) claim. Flaintiff met his initial burden of establishing that the statute was violated and that the violation proximately caused his injuries, and defendants failed to raise a triable issue of fact with respect thereto (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “A violation [of Labor Law § 240 (1)] occurs where a scaffold ... is inadequate in and of itself to protect workers against the elevation-related hazards encountered while . . . dismantling that device, and it is the only safety device supplied’ ’. (Cody v State of New York, 52 AD3d 930, 931 [2008]; see Metus v Ladies Mile Inc., 51 AD3d 537 [2008]; Kyle v City of New York, 268 AD2d 192, 197-198 [2000], lv denied 97 NY2d 608 [2002]; Pritchard v Murray Walter, Inc., 157 AD2d 1012, 1013 [1990]). Even assuming, arguendo, that plaintiff was negligent in moving materials to the back of the scaffold, thereby causing the scaffold to become unbalanced, we conclude that the “actions [of plaintiff] ‘render him [merely] contributorily negligent, a defense unavailable under, [section 240 (1)]’ ” (Gizowski v State of New York, 66 AD3d 1348, 1349 [2009]). “Because plaintiff established that a statutory violation was a proximate cause of [his] injuries], [he] ‘cannot be solely to blame for it’ ” (Woods v Design Ctr., LLC, 42 AD3d 876, 877 [2007], quoting Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]).

The court also properly denied that part of defendants’ cross motion seeking summary judgment dismissing the Labor Law § 241 (6) claim insofar as if is based on the alleged violation of 12 NYCRR 23-5.1 (b) and 23-5.3 (g). Those regulations are sufficiently specific to support that claim (see Abreo v URS Greiner Woodward Clyde, 60 AD3d 878, 880-881 [2009]), and triable issues of fact exist whether the alleged violation of those regulations proximately caused plaintiffs injuries (see Bobo v Slattery Assoc., 251 AD2d 439 [1998]).

All concur except Centra, J.P., and Carni, J., who dissent in part and vote to modify in accordance with the following memorandum.