DANIELEWICZ v. KLEWIN BUILDING COMPANY INC (2007)

 Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Michael Danielewicz (plaintiff) when he fell from a 32-foot extension ladder.   We agree with Klewin Building Company, Inc. (defendant) that Supreme Court erred in granting that part of plaintiffs' motion that sought partial summary judgment on liability on the Labor Law § 240(1) cause of action against defendant.   “In order to prevail upon such a cause of action a plaintiff must establish that the statute was violated, and that the violation was a proximate cause of his [or her] injuries” (Alava v. City of New York, 246 A.D.2d 614, 615, 668 N.Y.S.2d 624).   Here, plaintiff's inconsistent accounts of the manner in which the accident occurred raise issues of fact whether the statute was violated and, if so, whether that violation was a proximate cause of the accident (see e.g. Barber v. Roger P. Kennedy Gen. Contrs., 302 A.D.2d 718, 719, 755 N.Y.S.2d 502;  Woodworth v. American Ref-Fuel, 295 A.D.2d 942, 744 N.Y.S.2d 589;   Briggs v. Halterman, 267 A.D.2d 753, 699 N.Y.S.2d 795;  Cook v. Presbyterian Homes of W.N.Y., 234 A.D.2d 906, 655 N.Y.S.2d 701;  Macutek v. Lansing, 226 A.D.2d 964, 965, 640 N.Y.S.2d 693;  cf. Wasilewski v. Museum of Modern Art, 260 A.D.2d 271, 688 N.Y.S.2d 547).   In light of our determination, we see no need to address defendant's remaining contention.

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied in its entirety.

MEMORANDUM: