Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack,
Isaac & De Cicco, LLP, New York, NY [Brian J. Isaac and
Kenneth J. Gorman], of counsel), for appellant.
Cascone & Kluepfel, LLP, Garden City, NY (Howard B.
Altman and James K. O'Sullivan of counsel), for defendant
& Associates, P.C., New York, NY (Corey M. Reichardt of
counsel), for third-party defendant-respondent.
M. LEVENTHAL, J.P. SANDRA L. SGROI SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.
DECISION & ORDER
by the plaintiff from an order of the Supreme Court, Suffolk
County (Arthur G. Pitts, J.), dated April 16, 2015. The order
denied the plaintiff's motion for summary judgment on the
issue of liability on the cause of action alleging a
violation of Labor Law § 240(1).
that the order is affirmed, with one bill of costs.
defendant G.B. Construction and Development, Inc.
(hereinafter G.B. Construction), allegedly was retained as a
general contractor to perform siding and roofing work on a
home, and G.B. Construction subcontracted the roofing work to
the third-party defendant, Marcor Construction, Inc.
(hereinafter Marcor). On September 13, 2011, the plaintiff,
an employee of Marcor, allegedly was injured while performing
roofing work when he fell from the roof of a garage at the
subject property. The plaintiff commenced this action to
recover damages for personal injuries against, among others,
G.B. Construction, alleging violations of Labor Law
§§ 200, 240(1), and 241(6). G.B. Construction
commenced a third-party action against Marcor. The plaintiff
moved for summary judgment on the issue of liability on the
cause of action alleging a violation of Labor Law §
240(1). The motion was opposed by G.B. Construction and
Marcor. In an order dated April 16, 2015, the Supreme Court
denied the motion, concluding, among other things, that
summary judgment was premature. The plaintiff appeals from
conclude that, contrary to the plaintiff's contention,
the Supreme Court properly denied his motion for summary
judgment on the issue of liability on the cause of action
alleging a violation of Labor Law § 240(1), albeit for
reasons different from those stated in the order appealed
from. "Labor Law § 240(1) imposes upon owners,
contractors and their agents a nondelegable duty that renders
them liable regardless of whether they supervise or control
the work' for failure to provide proper protection from
elevation-related hazards" (Aslam v Neighborhood
Partnership Hous. Dev. Fund Co., Inc., 135 A.D.3d 790,
791, quoting Barreto v Metropolitan Transp. Auth.,
25 N.Y.3d 426, 433). " To recover on a cause of action
pursuant to Labor Law § 240(1), a plaintiff must
demonstrate that there was a violation of the statute, and
that the violation was a proximate cause of the
accident'" (Scofield v Avante Contr. Corp.,
135 A.D.3d 929, 930-931, quoting Przyborowski v A & M
Cook, LLC, 120 A.D.3d 651, 653). " Where there is
no statutory violation, or where the plaintiff is the sole
proximate cause of his or her own injuries, there can be no
recovery under Labor Law § 240 (1)'"
(Scofield v Avante Contr. Corp., 135 A.D.3d at 931,
quoting Garcia v Market Assoc., 123 A.D.3d 661,
the plaintiff established, prima facie, that G.B.
Construction was the general contractor on the subject
project within the meaning of Labor Law § 240(1)
(see Guanopatin v Flushing Acquisition Holdings,
LLC, 127 A.D.3d 812, 813; Williams v Dover Home
Improvement, 276 A.D.2d 626), that adequate safety
devices were not provided to him in violation of Labor Law
§ 240(1), and that the violation was a proximate cause
of his injuries (see Sanchez v Metro Bldrs. Corp.,
136 A.D.3d 783, 786; Canas v Harbour at Blue Point Home
Owners Assn., Inc., 99 A.D.3d 962, 963). In opposition
to the plaintiff's prima facie showing, G.B. Construction
failed to raise a triable issue of fact.
Marcor raised a triable issue of fact as to whether the
plaintiff was the sole proximate cause of his own injuries
(see Godoy v Neighborhood Partnership Hous. Dev. Fund
Co., Inc., 104 A.D.3d 646, 647-648) by submitting
evidence that the plaintiff was not authorized or instructed
to work on the roof of the garage at the time of the accident
(see Jardin v A Very Special Place, Inc., 138 A.D.3d
927, 930; Vega v Renaissance 632 Broadway, LLC, 103
A.D.3d 883, 885; John v Klewin Bldg. Co. Inc., 94
A.D.3d 1502, 1503-1504; Serrano v Popovic, 91 A.D.3d
parties' remaining contentions either are without merit
or need not be reached in light of our determination.
the Supreme Court properly denied the plaintiff's motion
for summary judgment on the issue of liability on the cause