Guilder v. Sands Hecht Construction Corp.

199 A.D.2d 164, 606 N.Y.S.2d 1, 1993 N.Y. App. Div. LEXIS 12150

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered May 19, 1992, which, inter alia, granted plaintiff’s motion for summary judgment as to liability pursuant to Labor Law § 240 (1) and directed an assessment of damages, unanimously affirmed, with costs.

Plaintiff’s uncontradicted testimony as to the collapse of the scaffold was sufficient to make out a prima facie case (see, Rodriguez v New York City Hous. Auth., 194 AD2d 460, 462; Figueroa v Manhattanville Coll., 193 AD2d 778, 779), and the affirmation of defendant’s attorney was insufficient to demonstrate the existence of any material issues of fact (see, Frierson v Concourse Plaza Assocs., 189 AD2d 609, 610). Under the circumstances, there was no view of the evidence that plaintiff’s rocking of the scaffold in order to move it was an unforeseeable intervening cause of the accident (cf., Desrosiers v Barry, Bette & Led Duke, 189 AD2d 947, 948). To the extent that defendant’s argument may be construed as urging that plaintiff was contributorily negligent, such is not a defense to this action (Stolt v General Foods Corp., 81 NY2d 918, 920; Liverpool v S.P.M. Envtl., 189 AD2d 645, 646). Concur—Carro, J. P., Rosenberger, Kassal and Rubin, JJ.