SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
December 28, 2012
JOSEPH LUNA, PLAINTIFF-RESPONDENT,
ZOOLOGICAL SOCIETY OF BUFFALO, INC., DEFENDANT-APPELLANT.
Appeal from an order of the Supreme Court, Erie County (Tracey A. Bannister, J.), entered October 17, 2011.
Luna v Zoological Socy. of Buffalo, Inc.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Released on December 28, 2012
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, AND MARTOCHE, JJ.
The order granted the motion of plaintiff for partial summary judgment pursuant to Labor Law § 240 (1).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained while working as a carpenter on a construction project for defendant. Supreme Court properly granted plaintiff's motion for partial summary judgment on liability with respect to the Labor Law § 240 (1) claim. Plaintiff sustained his initial burden of establishing that he was injured as the result of a fall from an elevated work surface and that defendant failed to provide a sufficient safety device (see Ferris v Benbow Chem. Packaging, Inc., 74 AD3d 1831, 1832; see generally Runner v New York Stock Exch., Inc., 13 NY3d 599, 603). In opposition, defendant failed to raise a triable issue of fact whether plaintiff's " own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of the accident' " (Mazurett v Rochester City School Dist., 88 AD3d 1304, 1305, quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40). We reject defendant's contention that there is an issue of fact whether plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident. Although defendant submitted evidence that plaintiff was instructed not to work in a particular area and violated those instructions, "the non-delegable duty imposed upon the owner and general contractor under Labor Law § 240 (1) is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give [a worker] proper protection" (Long v Cellino & Barnes, P.C., 68 AD3d 1706, 1707 [internal quotation marks omitted]), which was not done here. Thus, "[t]he mere failure by plaintiff to follow safety instructions does not render plaintiff a recalcitrant worker" (Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106 [internal quotation marks omitted]).
Entered: December 28, 2012 Frances E. Cafarell Clerk of the Court
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