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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS SCAFFOLD-COLLAPSE CASE SHOULD HAVE BEEN GRANTED IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this scaffold-collapse, Labor Law 240 (1) action should have been granted. The defendant did not raise a question of fact whether plaintiff’s omission (failure to use clips) was sole proximate cause of the movement of the scaffold and the fall:

… [T]he collapse of the scaffold, for no apparent reason, gave rise to “a prima facie showing that the statute was violated and that the violation was a proximate cause of the worker’s injuries” … . …

[Defendant] St. Gerard argued that the plaintiff failed to utilize clips to secure the working platform to the frame of the scaffold, and that this conduct was the sole proximate cause of the accident. However, St. Gerard’s evidence was insufficient to raise a triable issue of fact as to whether the plaintiff failed to use clips and whether any failure to use clips constituted the sole proximate cause of the accident. In this regard, St. Gerard relied solely on the affidavit of the plaintiff’s supervisor, Danny Simile, dated nearly 2½ years after the accident, in which Simile averred that “[t]here were no clips at the accident location.” Simile’s affidavit did not explain whether, when, or in what manner he had undertaken a search for clips. Significantly, the absence of clips was not noted in any of three incident reports prepared by Simile shortly after the accident. Additionally, Simile averred, in mere conclusory fashion, that had clips been used to secure the working platform, “the working platform would be secure and it would not move, slide out or fall.” This bare assertion was insufficient to raise a triable issue of fact as to whether any absence of clips was the sole proximate cause of the accident. Indeed, Simile also averred that if the platform had been “properly seated’ or decked'” it would be “secure” and would not “move, slide out or fall.” There was no evidence presented that the platform had been improperly “seated” or “decked.” Cruz v Roman Catholic Church of St. Gerard Magella in Borough of Queens in the City of N.Y., 2019 NY Slip Op 05763, 

 

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