CHRISTIANO v. RANDOM HOUSE INC (2008)

Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered August 1, 2007, which denied plaintiffs' motion for partial summary judgment and third-party defendant Plaza Construction's cross motion for summary judgment, unanimously affirmed, without costs.

The evidence, as exemplified by the plaintiff worker's own deposition testimony, does not establish that the accident occurred when he was standing on the floor of a soffit interior that collapsed beneath him.   To the contrary, it appears that he was standing on the steel beam within the soffit's interior, which did not shift, break or collapse when he fell (compare Gomez v. 2355 Eighth Ave., LLC, 45 A.D.3d 493, 847 N.Y.S.2d 163 [2007];  Becerra v. City of New York, 261 A.D.2d 188, 690 N.Y.S.2d 52 [1999] ).   Issues of material fact exist as to whether this plaintiff was a recalcitrant worker or the sole proximate cause of the accident, including whether immediately prior to the accident he had on his person adequate safety devices provided by defendants that he unilaterally decided to discard in the interest of completing his assigned tasks more quickly (see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004];  Gonzalez v. Rodless Props., L.P., 37 A.D.3d 180, 829 N.Y.S.2d 77 [2007] ).   Accordingly, summary resolution of the § 240(1) claim is unwarranted.