VERGARA v. SS 133 WEST 21 LLC (2005)

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered November 18, 2003, which denied plaintiffs' motion for partial summary judgment on their Labor Law § 240(1) claim against defendant-owner SS 133 West 21, LLC, defendant-lessee the School of Visual Arts and defendant-general contractor HMF Construction Corp., unanimously reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.

 Labor Law § 240(1) imposes a non-delegable duty upon the owner and contractor to supply necessary security devices for workers at an elevation, to protect them from falling (see Bland v. Manocherian, 66 N.Y.2d 452, 458-459, 497 N.Y.S.2d 880, 488 N.E.2d 810 [1985];  Rodriguez v. Forest City Jay St. Assoc., 234 A.D.2d 68, 650 N.Y.S.2d 229 [1996] ).   A violation of this duty results in absolute liability where the violation was the proximate cause of the accident (see Crespo v. Triad, Inc., 294 A.D.2d 145, 742 N.Y.S.2d 25 [2002] ).   Plaintiffs made a prima facie showing that plaintiff Ruben Vergara was not provided with the adequate protection required, and nothing in defendants' submissions created material issues of fact in this regard.   There is no dispute that the six-foot-high, manually propelled scaffold, which plaintiff was directed to use in order to plaster a fifteen-foot-high ceiling, had no side rails, and no other protective device was provided to protect him from falling off the sides (see Vanriel v. A. Weissman Real Estate, 262 A.D.2d 56, 691 N.Y.S.2d 446 [1999] ).

 There is no issue of fact as to whether the defect or insufficiency in the provided protective devices constituted a proximate cause of plaintiff's accident.   A lack of certainty as to exactly what preceded plaintiff's fall to the floor below does not create a material issue of fact here as to proximate cause.   It does not matter whether plaintiff's fall was the result of the scaffold falling over, or its tipping, or was due to plaintiff mis-stepping off its side.   In any of those circumstances, either defective or inadequate protective devices constituted a proximate cause of the accident (see Anderson v. International House, 222 A.D.2d 237, 635 N.Y.S.2d 13 [1995] ).

Labor Law § 240(2), New York State Industrial Code (12 NYCRR § 23-5.1 [j] ), and New York City Building Code (Administrative Code of the City of New York § 27-1042[g] ) do not require a contrary result.   These provisions apply to scaffolds in general;  however, code provisions specifically applicable to manually propelled scaffolds require safety railings without reference to the height of the scaffold (see Industrial Code [12 NYCRR] § 23-5.18[b];  New York City Building Code [Administrative Code] § 27-1048 [2] ).

 Nor may a claim of comparative negligence on plaintiff's part defeat summary judgment, unless plaintiff's conduct was the sole proximate cause of his accident (see Kyle v. City of New York, 268 A.D.2d 192, 196, 707 N.Y.S.2d 445 [2000], lv. denied 97 N.Y.2d 608, 739 N.Y.S.2d 97, 765 N.E.2d 300 [2002] ).   There is no plausible view of the evidence here by which Ruben Vergara may be said to have been the sole proximate cause of his accident (see Bland v. Manocherian, 66 N.Y.2d at 460, 497 N.Y.S.2d 880, 488 N.E.2d 810;  Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 780 N.Y.S.2d 558 [2004] ).   The record demonstrates that before he fell, Ruben was walking on the scaffold, with arms overhead, looking at the ceiling in order to do his assigned task, plastering.   There is nothing to indicate misconduct or misuse of the scaffold.

Plaintiffs were therefore entitled to an award of partial summary judgment on their claim pursuant to Labor Law § 240(1).