JUSTYK v. TREIBACHER SCHLEIFMITTEL CORP (2004)

 Plaintiff was injured when he fell through a 3- to 4-foot hole that he uncovered while removing roofing material containing asbestos at a work site and plummeted 18 to 20 feet to a concrete floor.   The hole had been previously cut in the roof in order to remove a piece of equipment from the building and then was sealed with a thin layer of tin before being covered with the roofing material that plaintiff subsequently removed.   Supreme Court properly granted plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1).   Plaintiff's accident is of the type the statute is designed to prevent (see Clark v. Fox Meadow Bldrs., 214 A.D.2d 882, 883, 624 N.Y.S.2d 685;  see also Huthmacher v. Dunlop Tire Corp., 284 A.D.2d 1014, 726 N.Y.S.2d 888, lv. dismissed 97 N.Y.2d 677, 738 N.Y.S.2d 291, 764 N.E.2d 395;  Stark v. Rotterdam Sq., 198 A.D.2d 583, 603 N.Y.S.2d 347) and it is undisputed that no safety devices were provided to plaintiff (see Felker v. Corning, Inc., 90 N.Y.2d 219, 225, 660 N.Y.S.2d 349, 682 N.E.2d 950;  Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 521, 493 N.Y.S.2d 102, 482 N.E.2d 898, rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055).   Although plaintiff was the one who exposed the hole when, in accordance with his duties, he removed a section of the roof with a serrated shovel, plaintiff's conduct does not create a question of fact on the issue of proximate cause because plaintiff's own carelessness is irrelevant (see Clark, 214 A.D.2d at 884, 624 N.Y.S.2d 685).   The record establishes that the outline of the tin-covered hole was visible from the interior of the building and that Treibacher Schleifmittel Corp. (defendant) knew of the existence of the tin-covered hole.   We therefore conclude that exposure of the hole was not an unforeseeable, intervening act (see id.).   Finally, the court did not abuse its discretion in denying that part of defendant's cross motion seeking to compel plaintiff to produce his tax returns.   Defendant did not establish that the information contained therein is not available from other sources (see Ciancio v. Woodlawn Cemetery Assn., 210 A.D.2d 9, 10, 618 N.Y.S.2d 816;  Abbene v. Griffin, 208 A.D.2d 483, 616 N.Y.S.2d 1015;  Lauer's Furniture Stores v. Pittsford Place Assoc., 190 A.D.2d 1054, 1055, 593 N.Y.S.2d 674;  Matthews Indus. Piping Co. v. Mobil Oil Corp., 114 A.D.2d 772, 495 N.Y.S.2d 35).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: