WONDERLING v. CSX TRANSPORTATION INC (2006)

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell approximately 26 feet to the ground while disassembling scaffolding on the Lyndon Road Pedestrian Bridge Project located on defendant's property.   We conclude that Supreme Court properly denied plaintiff's motion for partial summary judgment on liability on the Labor Law § 240(1) claim, but our reasoning differs from that of the court.   Plaintiff's initial submissions in support of the motion are insufficient to establish plaintiff's entitlement to judgment as a matter of law, and the reply papers submitted by plaintiff are not considered in evaluating whether he met his initial burden (see Seefeldt v. Johnson, 13 A.D.3d 1203, 787 N.Y.S.2d 594).

We further conclude that the court properly denied defendant's cross motion for summary judgment dismissing the complaint because defendant failed to establish that plaintiff's own actions in attempting to disassemble the scaffolding in dangerously wet conditions were, as a matter of law, the sole proximate cause of plaintiff's injuries.   Here, defendant failed to establish that the scaffolding was properly constructed and that, but for the wet conditions, plaintiff would not have fallen (see Tronolone v. Praxair, Inc., 22 A.D.3d 1031, 1033, 804 N.Y.S.2d 520).   Even assuming, arguendo, that defendant met its initial burden, we conclude that plaintiff raised triable issues of fact by submitting his testimony from the General Municipal Law § 50-h hearing in which he testified that the scaffolding was unstable, causing him to fall.   Although defendant submitted evidence that plaintiff fell when his foot slipped on the wet slippery steel of the scaffolding, that plaintiff was told not to disassemble the scaffolding that day because of the wet conditions, and that safety harnesses were available, defendant did not thereby establish as a matter of law that the actions of plaintiff were the sole proximate cause of his injuries (see Hagins v. State of New York, 81 N.Y.2d 921, 922-923, 597 N.Y.S.2d 651, 613 N.E.2d 557;  see also Whiting v. Dave Hennig, Inc., 28 A.D.3d 1105, 815 N.Y.S.2d 382).   We thus conclude on the record before us that there are issues of fact whether the actions of plaintiff were the sole proximate cause of his injuries (see Andrews v. Ryan Homes, Inc., 27 A.D.3d 1197, 812 N.Y.S.2d 729;  cf. Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554-555, 814 N.Y.S.2d 589, 847 N.E.2d 1162;  Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290-291, 771 N.Y.S.2d 484, 803 N.E.2d 757).

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

MEMORANDUM: