WARD v. CEDAR KEY ASSOCIATES (2004)

Plaintiff commenced this action seeking to recover damages for injuries sustained when a scissor lift in which he was working at a construction site tipped and fell.   Supreme Court properly granted plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1).   Plaintiff met his initial burden on the motion by demonstrating that he was engaged in an activity included in the statute, the erection of a building or structure, and that his accident involved an elevation-related hazard that the statute was intended to protect against (see generally Melber v. 6333 Main St., 91 N.Y.2d 759, 762-763, 676 N.Y.S.2d 104, 698 N.E.2d 933).   Plaintiff further established the requisite causal link between his injuries and the violation of defendants' nondelegable duty to ensure that the scissor lift was “so constructed, placed and operated as to give proper protection” to plaintiff (§ 240[1];  see Melber, 91 N.Y.2d at 762, 676 N.Y.S.2d 104, 698 N.E.2d 933;  Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950;  Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520, 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).   Defendants failed to raise a triable issue of fact.   Defendants' contention that the scissor lift provided to plaintiff was an adequate safety device lacks merit;  the fact that the scissor lift tipped establishes that it was not so “placed ․ as to give proper protection” to plaintiff (§ 240[1];  see Petit v. Board of Educ. of W. Genesee School Dist., 307 A.D.2d 749, 749-750, 762 N.Y.S.2d 557;  Adderly v. ADF Constr. Corp., 273 A.D.2d 795, 710 N.Y.S.2d 275).   Contrary to their further contention, defendants failed to raise a triable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries (see Panek v. County of Albany, 99 N.Y.2d 452, 458, 758 N.Y.S.2d 267, 788 N.E.2d 616;  Villeneuve v. State of New York, 274 A.D.2d 958, 711 N.Y.S.2d 666;  Adderly, 273 A.D.2d at 795, 710 N.Y.S.2d 275;  cf. Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: