CUSUMANO v. SUPER P57 LLC (2025)

Amended order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered on or about May 10, 2024, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action, and granted plaintiff's cross-motion for summary judgment on that cause of action, unanimously affirmed, without costs.

Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action.  Plaintiff's proof showed that, while he was in the process of repositioning a chain fall, he was struck by a double-I beam weighing more than 1,000 pounds that was not secured to the dolly on which it was resting (see Ali v. Sloan–Kettering Inst. for Cancer Research, 176 A.D.3d 561, 561, 112 N.Y.S.3d 14 [1st Dept. 2019];  see also Taopanta v. 1211 6th Ave. Prop. Owner, LLC, 212 A.D.3d 566, 567, 182 N.Y.S.3d 90 [1st Dept. 2023]).  Contrary to defendants’ argument, plaintiff repeatedly identified clamps as a readily available safety device that would have secured the double-I beam to the dolly (see Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011]).

In opposition, defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident.  Even if plaintiff's accident occurred as he was attempting to move the double-I beam by himself, this would, at most, constitute comparative negligence, which is not a defense to a Labor Law § 240(1) cause of action (see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556 [1993];  Powers v. Del Zotto & Son Bldrs., 266 A.D.2d 668,670, 698 N.Y.S.2d 74 [3d Dept. 1999]).