The First Department, over an extensive dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) claim, noting that comparative negligence on the part of the plaintiff is not a defense. Plaintiff alleged he was operating a forklift lifting bricks to be placed on a scaffold when the forklift pitched forward and catapulted him over the front of the machine:
We agree with the motion court that plaintiff is entitled to summary judgment on his Labor Law § 240 claim. Plaintiff was using the prime mover to hoist a load; if the prime mover pitched forward due to the force of gravity, it failed to offer adequate protection and Labor Law § 240(1) applies … . Similarly, if the accident occurred because either the prime mover or scaffold could not support the weight of the brick load, the accident also resulted from the application of the force of gravity to the load during the hoisting operation, and Labor Law § 240(1) applies … . * * *
“[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence” … . On the contrary, that plaintiff may have negligently lowered the pallet, as the dissent posits, makes no possible difference to the outcome here, as “[n]egligence, if any, of the injured worker is of no consequence” … . Rather, the law is clear that “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . Here, the failure to provide a proper hoisting device to protect plaintiff violated Labor Law § 240(1). Somereve v Plaza Constr. Corp., 2016 NY Slip Op 01236, 1st Dept 2-18-16
LABOR LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CLAIM EVEN WHEN NOT FREE FROM NEGLIGENCE)