PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT).

The Third Department determined plaintiff was entitled to summary judgment in his Labor Law 240 (1) action result from a fall from an unsafe makeshift platform made by the plaintiff. Plaintiff alleged the lift with which he was provided could not be used and no other safety equipment was provided:

Defendant is a property owner subject to the statute and he provided no equipment to plaintiff aside from agreeing to rent a lift for plaintiff’s use. Plaintiff, at the time of his injury, was installing siding above a staircase running along the side of the building. He averred that the lift would not fit in the area, he was not provided with a traditional scaffold and he could not have used a “ladder jack” scaffold in the area due to both the equipment being in use elsewhere and the location of the staircase. Plaintiff accordingly fashioned a work platform from his A-frame ladder and a scaffolding plank known as a pick, running the pick between a rung of the ladder and the top landing of the staircase. The pick and ladder were not anchored to the ground or the wall, and plaintiff gave deposition testimony stating that he fell several feet when the contraption slid out from beneath him as he was pushing the new siding into place. An engineer retained by plaintiff opined that the unsecured makeshift platform was unsafe and that defendant violated Labor Law § 240 (1) by failing to furnish adequate safety equipment, such as a proper scaffold and a safety harness, that would have shielded plaintiff from injury. The foregoing was sufficient to “establish[] a prima facie showing of a statutory violation which was a proximate cause of plaintiff’s injuries, [shifting the burden] to defendant to submit evidentiary facts which would raise a factual issue on liability” … . …

Defendant responded by arguing that inconsistencies in plaintiff’s account over time raised a material question of fact as to how the accident occurred. * * * [The] variations did not suggest “that plaintiff’s fall and injuries were caused by anything other than the unsecured [pick and] ladder or that plaintiff’s own conduct was the sole proximate cause of the accident[.]” Cooper v Delliveneri, 2018 NY Slip Op 07396, Third Dept 11-1-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT))