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PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS.

The Fourth Department, over a two-justice dissent, reversing Supreme Court, determined plaintiff’s motion papers in the Labor Law 240(1) action raised a triable issue of fact whether his failure to use an available ladder was the sole proximate cause of his fall from a wall. Plaintiff’s motion must therefore be denied without any need to consider the opposing papers:

Liability under section 240 (1) does not attach when the safety devices that [the] plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and [the] plaintiff knew he [or she] was expected to use them but for no good reason chose not to do so, causing an accident” … . Under those circumstances, the “plaintiff’s own negligence is the sole proximate cause of his [or her] injury” … .

Where the plaintiff’s submissions in support of the motion raise a triable issue of fact whether his or her own actions were the sole proximate cause of the injury, the plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of liability because “if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation” … . In this case, plaintiff’s submissions raised triable issues of fact whether plaintiff knew that he was expected to use a readily available ladder at the work site to perform his task, but for no good reason chose not to do so, and whether he would not have been injured had he not made that choice … . Scruton v Acro-Fab Ltd., 2016 NY Slip Op 07428, 4th Dept 11-10-16

 

LABOR LAW (PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/SOLE PROXIMATE CAUSE (LABOR LAW 240(1), PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/LADDERS (LABOR LAW 240(1), PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)

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