JIMINEZ v. And a Third-Party Action. (2001)

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered March 1, 2001, which granted plaintiffs' motion for partial summary judgment on the issue of liability on their Labor Law § 240(1) claim, and denied defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The evidence adduced on the motion established that plaintiff construction worker was injured when he slipped on ice and fell head-first into a 15-foot deep foundation excavation situated adjacent to his work area.   It is undisputed that plaintiff had not been provided any safety devices to prevent or break his fall.   Under these circumstances, plaintiff's motion for partial summary judgment as to liability was properly granted since his injury was clearly caused by an elevation-related hazard within the remedial ambit of Labor Law § 240(1).   Defendants, in response to plaintiff's prima facie showing of entitlement to judgment as a matter of law, failed to raise any triable issue either as to whether they provided safety devices or as to whether their failure to provide such devices was the proximate cause of plaintiff's harm (see, Trillo v.. City of New York, 262 A.D.2d 121, 691 N.Y.S.2d 515).

With regard to the remaining issues raised by defendants' cross motion for summary judgment, the motion court properly found that defendants' failure to proffer evidence in admissible form precluded an award of summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718).