ALTHOUGH PLAINTIFF POSITIONED THE SCAFFOLD SUCH THAT IT TIPPED WHEN A WHEEL WENT THROUGH A HOLE IN A DRAIN GRATE, HE WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined that plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff had positioned the scaffold on a drain grate and the scaffold tipped when a wheel went through a hole in the grate:

“[T]he relevant and proper inquiry is whether the hazard plaintiff encountered . . . was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance” … . Here, it is undisputed that the scaffold on which plaintiff was standing tipped over because one of its wheels was placed over an open floor drain hole. The fact that the scaffold tipped and plaintiff fell to the ground “demonstrates that it was not so placed . . . as to give proper protection to [him]” … . We therefore conclude that plaintiff’s accident was caused by an elevation-related risk as contemplated in section 240 (1) … .

We reject defendant’s contentions that the sole proximate cause of the accident was plaintiff’s failure to observe the drain hole and position the scaffold in such a manner to avoid it. “[T]here can be no liability under [Labor Law § ] 240 (1) when there is no violation and the worker’s actions . . . are the sole proximate cause’ of the accident” … , and “[a] defendant is entitled to summary judgment dismissing a Labor Law § 240 (1) cause of action or claim by establishing that . . . the plaintiff’s conduct was the sole proximate cause of the accident” … . Plaintiff submitted the testimony of four witnesses, including the project superintendent of the subcontractor that installed the drain and the project manager and superintendent of the subcontractor that installed the concrete floor and curing blanket. Each testified that a temporary cover should be placed over an open drain during the installation of the concrete floor, and therefore plaintiff established that a statutory violation, i.e., the placement of the scaffold over the improperly covered drain hole, was a proximate cause of the accident … . Thus, even assuming, arguendo, that plaintiff was negligent in failing to observe the drain hole and positioning the scaffold over it, we conclude that his “actions . . . render him [merely] contributorily negligent, a defense unavailable under [Labor Law § 240 (1)]”  … . “Because plaintiff established that a statutory violation was a proximate cause of [his] injury, [he] cannot be solely to blame for it’ ” … . Wolf v Ledcor Constr. Inc., 2019 NY Slip Op 06263, Fourth Dept 8-22-19