Thome v. Benchmark Main Transit Associates, LLC , 927 N.Y.2d 260 ( 2011 )

Memorandum:

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when the scissor lift on which he was standing tipped over. Benchmark Main Transit Associates, LLC and Christa Construction, LLC (collectively, defendants) appeal from an order that, inter alia, granted those parts of plaintiffs motion for partial summary judgment on liability with respect to the Labor Law § 240 (1) claim against them. Although defendants purport to appeal from “each and every portion of the [o]rder ... as well as from the whole [o]rder,” we note that defendants are aggrieved only by those parts of the order granting plaintiffs motion with respect to the section 240 (1) claim against them. Contrary to defendants’ contention, plaintiff met his initial burden on those parts of the motion. “In order for a plaintiff to demonstrate entitlement to summary judgment on an alleged violation of Labor Law § 240 (1), he [or she] must establish that there was a violation of the statute, which was the proximate cause of the worker’s injuries . . . However, if adequate safety devices are provided and the worker either chooses not to use them or misuses them, then liability under section 240 (1) does not attach” (Cherry v Time Warner, Inc., 66 AD3d 233, 236 [2009]). Here, plaintiff met his initial burden of establishing a statutory violation by submitting evidence that he was standing on the raised scissor lift when it tipped over and that he was in the process of measuring and installing metal studs at that time (cf. Primavera v Benderson Family 1968 Trust, 294 AD2d 923 [2002]; see generally Dean v City of Utica, 75 AD3d 1130 [2010]; Ward v Cedar Key Assoc., L.P., 13 AD3d 1098 [2004]). Thus, the scissor lift “failed while plaintiff was [engaged in] . . . work requiring the statute’s special protections” (Melber v 6333 Main St., 91 NY2d 759, 763-764 [1998]).

We agree, however, with the further contention of defendants that they raised a triable issue of fact whether plaintiffs actions were the sole proximate cause of his injuries. In opposition to the motion, defendants submitted evidence that plaintiff was aware that holes had been cut into the concrete floor of the building in which he was working and that, on the morning of his accident, plaintiff had been specifically directed not to operate the scissor lift in the area where the holes had been cut. Further, defendants submitted evidence that plaintiff drove the raised lift into that area while looking at the ceiling rather than where the lift was going. Consequently, “[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240 (1), here there is a question of fact [concerning] whether the injured plaintiffs fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries” (Bahrman v Holtsville Fire Dist., 270 AD2d 438, 439 [2000]). Smith, J.P., Carni, and Sconiers, JJ., concur; Martoche, J., concurs in the following memorandum.