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Question of Fact Whether Plaintiff’s Negligence Was Sole Proximate Cause of Injuries in Labor Law 240(1) Action

The Second Department determined there were questions of fact precluding both plaintiffs’ and defendant’s motions for summary judgment in a Labor Law 240(1) action.  Although the ladder which tipped over was not defective and was appropriate to the task, there were questions whether the ladder was mispositioned and, if so, who mispositioned it.  The fact that plaintiff may have been negligent did not preclude recovery under Labor Law 240(1) as long a plaintiff’s negligence was not the sole proximate cause of his injury:

In order to prevail on a Labor Law § 240(1) cause of action, a plaintiff must prove that the statute was violated and that the violation was a proximate cause of the injuries … . Proof that the plaintiff’s own negligence was also a proximate cause will not defeat the claim … . When the evidence establishes, however, that the plaintiff’s own negligence was the sole proximate cause of the injuries, the defendant may not be held liable for those injuries … . The parties’ submissions demonstrated that the ladder itself was not defective and was appropriate to [plaintiff’s] task.

There are triable issues of fact … as to whether the ladder was mispositioned and, if so, who mispositioned it, and, if it was mispositioned by [plaintiff], whether his conduct was the sole proximate cause of the ladder’s tipping over … . Daley v 250 Park Ave., LLC. 2015 NY Slip Op 01917, 2nd Dept 3-11-15

 

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IN THIS LADDER-FALL CASE, CONFLICTING EVIDENCE ABOUT WHETHER A LADDER WAS REQUIRED FOR PLAINTIFF’S WORK MANDATED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; RE: THE LABOR LAW 241(6) CAUSE OF ACTION, DEFENDANT-OWNER HAD A NONDELEGABLE DUTY TO ENSURE COMPLIANCE WITH THE LADDER-SAFETY PROVISIONS OF THE INDUSTRIAL CODE, THE OWNER’S LABOR LAW 241(6) LIABILITY IS NOT BASED UPON CONTROL OF THE WORK SITE (SECOND DEPT).
IT WAS ALLEGED ONE MAN INTENDED TO DOUSE ANOTHER WITH LIQUID IN A CUP BUT UNINTENTIONALLY THREW THE CUP ITSELF CAUSING INJURY; THERE WAS A QUESTION OF FACT WHETHER THE INJURY WAS CAUSED BY INTENTIONAL CONDUCT OR AN ACCIDENT (SECOND DEPT).
ALTHOUGH THE PARKING/STORAGE AREA WHERE CLAIMANT WAS INJURED WAS NOT ON THE CONSTRUCTION SITE, THERE WAS A SUFFICIENT NEXUS BETWEEN THE PARKING/STORAGE AREA AND THE CONSTRUCTION SITE SUCH THAT CLAIMANT’S PLACE OF EMPLOYMENT EXTENDED TO THE PARKING/STORAGE AREA (THIRD DEPT).
OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT).
LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT).
THE GYM TEACHER TOLD THE STUDENTS TO RUN AROUND THE PERIMETER OF THE BUILDING; STUDENT PLAINTIFF TRIPPED AND FELL OVER A CHAIN WHICH, SHE ALLEGED, OTHER STUDENTS WERE JUMPING OVER AS THEY RAN; THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION SLIP AND FALL CASE WAS PROPERLY DENIED (SECOND DEPT).
FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 CAN BE RAISED AT ANY TIME; HERE IT WAS RAISED IN OPPOSITION TO THE MOTION TO CONFIRM THE REFEREE’S REPORT; THE PROOF OF COMPLIANCE WAS INSUFFICIENT (SECOND DEPT).
CAUSE OF ACTION BASED UPON A THEORY NOT ALLEGED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT).

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