Owczarek v. Austin Co.

Appellate Division of the Supreme Court of New York

Owczarek v. Austin Co.

19 A.D.3d 1003, 796 N.Y.S.2d 292, 2005 N.Y. App. Div. LEXIS 6206

Appellate Division of the Supreme Court of the State of New York·Decided June 10, 2005·Published·Cited by 1 cases

Opinion

Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered August 12, 2004 in a personal injury action. The order granted plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: In this action to recover damages for injuries sustained by Gregory D. Owczarek (plaintiff) when he fell from scaffolding at the site of a wall demolition, defendants appeal from an order granting plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Supreme Court properly granted plaintiffs’ motion. Plaintiffs met their initial burden by demonstrating that plaintiff was engaged in a protected activity and that his accident involved an elevation-related hazard within the ambit of the statute (see Ward v Cedar Key Assoc., L.P., 13 AD3d 1098 [2004], citing Melber v 6333 Main St., 91 NY2d 759, 762-763 [1998]). “Plaintiff[s] further established the requisite causal link between [plaintiffs] injuries and the violation of defendants’ nondelegable duty to ensure that the [scaffolding] was ‘so constructed, placed and operated as to give proper protection’ to plaintiff’ (id. at 1098; see Patrick v People, Inc., 11 AD3d 990, 990-991 [2004]). Defendants failed to raise a triable issue of fact concerning whether the statute was violated or whether the conduct of plaintiff was the sole proximate cause of his injuries (see Ward, 13 AD3d 1098 [2004]; Patrick, 11 AD3d at 991; Alligood v Hospitality W., LLC, 8 AD3d 1102 [2004]; Dahl v Armor Bldg. Supply, 280 AD2d 970, 971 [2001]). Instead, defendants established merely that plaintiff might have been comparatively at fault for the accident, which “ ‘has no bearing on defendants’ [1004]*1004liability under the statute’ ” (Alligood, 8 AD3d at 1102). Present—Scudder, J.P., Kehoe, Martoche, Smith and Hayes, JJ.

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Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered August 12, 2004 in a personal injury action. The order granted plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: In this action to recover damages for injuries sustained by Gregory D. Owczarek (plaintiff) when he fell from scaffolding at the site of a wall demolition, defendants appeal from an order granting plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Supreme Court properly granted plaintiffs’ motion. Plaintiffs met their initial burden by demonstrating that plaintiff was engaged in a protected activity and that his accident involved an elevation-related hazard within the ambit of the statute (see Ward v Cedar Key Assoc., L.P., 13 AD3d 1098 [2004], citing Melber v 6333 Main St., 91 NY2d 759, 762-763 [1998]). “Plaintiff[s] further established the requisite causal link between [plaintiffs] injuries and the violation of defendants’ nondelegable duty to ensure that the [scaffolding] was ‘so constructed, placed and operated as to give proper protection’ to plaintiff’ (id. at 1098; see Patrick v People, Inc., 11 AD3d 990, 990-991 [2004]). Defendants failed to raise a triable issue of fact concerning whether the statute was violated or whether the conduct of plaintiff was the sole proximate cause of his injuries (see Ward, 13 AD3d 1098 [2004]; Patrick, 11 AD3d at 991; Alligood v Hospitality W., LLC, 8 AD3d 1102 [2004]; Dahl v Armor Bldg. Supply, 280 AD2d 970, 971 [2001]). Instead, defendants established merely that plaintiff might have been comparatively at fault for the accident, which “ ‘has no bearing on defendants’ [1004]*1004liability under the statute’ ” (Alligood, 8 AD3d at 1102). Present—Scudder, J.P., Kehoe, Martoche, Smith and Hayes, JJ.

Owczarek v. Austin Co., 19 A.D.3d 1003, 796 N.Y.S.2d 292, 2005 N.Y. App. Div. LEXIS 6206 (N.Y. Ct. App. 2005).

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