ALTHOUGH CLAIMANT WAS INJURED WHEN METAL POLES BEING HOISTED BY A CRANE SLIPPED OUT OF A CHOKER AND STRUCK HIM, CLAIMANT DID NOT SUBMIT EXPERT OPINION EVIDENCE RE: THE CAUSE AND DID NOT ELIMINATE QUESTIONS OF FACT RE: WHETHER HIS CONDUCT IN SECURING THE POLES WAS THE SOLE PROXIMATE CAUSE, CLAIMANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined claimant was not entitled to summary judgment on his Labor Law 240 (1) cause of action. Claimant had secured metal posts with a choker. When the posts were lifted by a crane, they slipped out of the choker and struck claimant, cause traumatic brain injury. Claimant did not submit any expert opinion evidence. Defendant alleged claimant’s conduct was the sole proximate cause of the accident:

To prevail on a motion for summary judgment in a Labor Law § 240(1) “falling object” case, the claimant must demonstrate that, at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking …. Labor Law § 240(1) “does not automatically apply simply because an object fell and injured a worker; [a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute'” … .

Here, the claimants failed to establish their prima facie entitlement to judgment as a matter of law. The evidence submitted by the claimants was insufficient to establish that the posts fell due to the absence or inadequacy of an enumerated safety device, and the claimants further failed to eliminate all triable issues of fact as to whether the claimant’s conduct was the sole proximate cause of the accident … . Houston v State of New York, 2019 NY Slip Op 03032, Second Dept 4-24-19