PLAINTIFF ROOFER WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BECAUSE HE FELL THROUGH AN UNPROTECTED HOLE IN THE ROOF WHICH WAS COVERED ONLY BY A SHEET OF BLACK PLASTIC; THE FACT THAT PLAINTIFF HAD UNTIED HIS SAFETY HARNESS SO HE COULD ASSIST A CO-WORKER DID NOT PRECLUDE SUMMARY JUDGMENT BECAUSE COMPARATIVE NEGLIGENCE IS NOT RELEVANT UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the fact that plaintiff untied his harness so he could assist a fellow roofer in another area of the roof did not preclude summary judgment in plaintiff’s favor on the Labor Law 240(1) cause of action. Plaintiff, when walking toward the co-worker he was going to assist, fell through a hole in the roof that was concealed by a sheet of black plastic:

… [T]he plaintiff established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injuries. The undisputed evidence established that the plaintiff was exposed to the elevation-related risk of the hole that was cut into the roof, that the hole through which the plaintiff fell was uncovered and unguarded, and that the location of the hole was concealed by an ice and water shield. The plaintiff established that the absence of protective equipment covering or guarding the hole was a proximate cause of his injuries. Indeed, in granting summary judgment on the issue of liability on the Labor Law § 241(6) cause of action, the Supreme Court found that the defendants failed to cover or guard the hole as required by the Industrial Code, and that such failure was a proximate cause of the plaintiff’s injuries. “[W]hen the evidence establishes the absence of any safety devices . . . the statutes’ [Labor Law § 240(1)] clear dictates have not been met. . . If proximate cause is established, the responsible parties have failed, as a matter of law, to ‘give proper protection'” … .

… [T]he defendants failed to raise a triable issue of fact as to whether there was a statutory violation and whether the plaintiff’s own conduct was the sole proximate cause of the accident … . Since the plaintiff established a violation of the statute and that the violation was a proximate cause of his fall, the plaintiff’s comparative negligence, if any, is not a defense to the Labor Law § 240(1) cause of action … . Mejia v 69 Mamaroneck Rd. Corp, 2022 NY Slip Op 01449, Second Dept 3-9-22

Practice Point: Plaintiff fell through an unprotected hole in the roof covered only by a sheet of black plastic. Even though he had untied his safety harness at the time of the fall, summary judgment on his Labor Law 240(1) cause of action was awarded by the appellate court because comparative negligence is not defense.