The Fourth Department determined Supreme Court properly granted plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action (as well as a Labor law 241 (6) cause of action). Plaintiff was struck when a bundle of rebar that was being hoisted fell. Plaintiff’s actions in placing chokers on the rebar to allow the rebar to be hoisted were not the sole proximate cause of the accident. Others were involved in preparing the rebar for hoisting:
To recover under section 240 (1) for injuries sustained in a falling object case, a plaintiff must establish “both (1) that the object was being hoisted or secured, or that it required securing for the purposes of the undertaking, and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential” … . Here, we conclude that plaintiff established those factors and therefore met his burden on his motion. We note, in particular, that the deposition testimony and two witness affidavits tendered by plaintiff established “that any safety devices in fact used[, i.e., the chokers] failed in [their] core objective of preventing the [rebar] from falling,’ ” and that such failure was a proximate cause of the accident… . In opposition, defendants failed to raise a material issue of fact inasmuch as the opinions of their expert were conclusory … .
Contrary to defendants’ further contention, plaintiff’s actions were not the sole proximate cause of his injuries. “[W]here a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability” … . To establish their “sole proximate cause” theory, defendants were required to present “some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff [was] the sole proximate cause of his . . . injuries” … . Here, the record establishes that plaintiff was not alone in rigging the rebar bundle and transporting it to a different area of the construction site, and thus plaintiff’s conduct could not be the sole proximate cause of his injuries. We therefore conclude that plaintiff’s action in participating in the rigging process raises, at most, an issue concerning his comparative negligence, which is not an available defense under Labor Law § 240 (1) … . Flowers v Harborcenter Dev., LLC, 2017 NY Slip Op 08117, Fourth Dept 11-17-17
LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED, PLAINTIFF’S ACTIONS COULD NOT HAVE BEEN THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED, PLAINTIFF’S ACTIONS COULD NOT HAVE BEEN THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT))