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Rapalo v. MJRB Kings Highway Realty, LLC

Supreme Court of New York, Second Department

July 25, 2018

Luis Gerardo Rapalo, appellant,
v.
MJRB Kings Highway Realty, LLC, et al., respondents (and other titles). Index No. 7314/09

          Argued-April 2, 2018

         D56159 C/hu

          Gorayeb & Associates, P.C., New York, NY (Mark H. Edwards of counsel), for appellant.

          Fabiani Cohen & Hall, LLP, New York, NY (Kevin B. Pollak and Nicole Galletta of counsel), for respondent MJRB Kings Highway Realty, LLC.

          Ahmuty, Demers & McManus, Albertson, NY (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondent NY A to Z Construction Group, Inc.

          RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated January 6, 2016. The order denied the plaintiffs motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant MJRB Kings Highway Realty, LLC.

         ORDERED that the order is reversed, on the law, with one bill of costs, and the plaintiffs motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant MJRB Kings Highway Realty, LLC, is granted.

         The plaintiff was a construction worker at a building in Brooklyn owned by the defendant MJRB Kings Highway Realty, LLC (hereinafter MJRB). On January 30, 2009, the plaintiff allegedly was injured when a plank on a scaffold he was erecting broke, causing him to fall approximately 30 feet. The plaintiff commenced this action against MJRB, among others, alleging, inter alia, a violation of Labor Law § 240(1). After discovery, the plaintiff moved for summary judgment on the issue of liability against MJRB on the cause of action alleging a violation of Labor Law § 240(1). MJRB opposed the motion, and the Supreme Court denied it. The plaintiff appeals, and we reverse.

         Under Labor Law § 240(1), owners and general contractors, and their agents, have a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites (see Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426, 433; McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374; Probst v 11 W. 42 Realty Invs., LLC, 106 A.D.3d 711, 711). To succeed on a cause of action under Labor Law § 240(1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiffs injuries (see Barreto v Metropolitan Transp. Auth., 25 N.Y.3d at 433; Vivar v 441 Realty, LLC, 128 A.D.3d 810, 810). A worker's comparative negligence is not a defense to a cause of action under Labor Law § 240(1) and does not effect a reduction in liability (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 286; Cano vMid-Valley Oil Co., Inc., 151 A.D.3d 685, 690; Robinson v National Grid Energy Mgt., LLC, 150 A.D.3d 910, 912; Garzon v Viola, 124 A.D.3d 715, 716-717). When, however, the worker's own conduct is the sole proximate cause of the accident, no recovery under Labor Law § 240(1) is available (see Robinson v East Med. Ctr., LP, 6 N.Y.3d 550, 554; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 290).

         Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that he was not provided with necessary protection from the gravity-related risk of his construction work, and that the absence of the necessary protection was a proximate cause of his injuries (see Cruz v Cablevision Sys. Corp., 120 A.D.3d 744, 746; Chabla v 72 Greenpoint, LLC, 101 A.D.3d 928, 928; Campbell v 111 Chelsea Commerce, L.P.,80 A.D.3d 721, 721-722). In opposition, MJRB failed to raise a triable issue of fact (see Batista v Manhattanville Coll.,28 N.Y.3d 1093, 1094; Chabla v 72 Greenpoint, LLC, 101 A.D.3d at 928-929; Melchor v Singh,90 A.D.3d 866, 869-870; cf. Valente v Lend Lease [US] Constr. LMB, Inc.,29 N.Y.3d 1104, 1105). MJRB contends that the plaintiffs failure to use a safety harness was the sole proximate cause of his accident. There was, however, no evidence that the plaintiff was informed as to where the harnesses were kept and that he was instructed in their use (see Durmiaki v International Bus. Machs. Corp.,85 A.D.3d 960, 961; Milewski v Caiola,236 A.D.2d 320). Moreover, MJRB's contention that the plaintiff was the sole proximate cause of the accident because the scaffold from which he fell was one which he himself was constructing is without merit (see Milewski v Caiola, 236 ...


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