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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT).

The Second Department determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action was properly denied. Plaintiff was directed to repair the top rung of a permanent ladder which was missing a bolt. Plaintiff tried to pull himself up by grabbing the top rung which allegedly gave way causing him to fall. Plaintiff testified there were other safety devices (ladders, scaffolding) he could have used and did not demonstrate his actions did not constitute the sole proximate cause of his injuries:

“The single decisive question in determining whether Labor Law § 240(1) is applicable is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … .

In order to obtain summary judgment on the issue of liability on a Labor Law § 240(1) cause of action, a plaintiff is required to demonstrate, prima facie, that there was a violation of the statute and that the violation was a proximate cause of his or her injuries … . “Merely because a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by Section 240(1) of the Labor Law'” … .

Here, the plaintiffs failed to establish, prima facie, that there was a violation of Labor Law § 240(1), or that the injured plaintiff’s actions were not the sole proximate cause of his injuries…  In support of their motion, the plaintiffs submitted the injured plaintiff’s deposition testimony in which he stated that he fell when the top rung of the ship’s ladder, which he knew was missing a bolt and which he had been sent up to the roof to replace, detached while he was in the process of climbing the ladder and after he had attempted to pull himself up by placing his hand on the top rung. The injured plaintiff also testified at his deposition that there were other ladders and pipe scaffolding available to use at the jobsite. Jones v City of New York, 2018 NY Slip Op 07708, Second Dept 11-14-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT))

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DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION... DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY...