BERRIOS v. 735 AVENUE OF AMERICAS LLC (2011)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 8, 2010, which granted plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1), unanimously affirmed, without costs. Appeal from order, same court (Laura G. Douglas, J.), entered on or about July 2, 2010, unanimously withdrawn pursuant to the parties' signed stipulation.

Defendants argue, for the first time on appeal, that Labor Law § 240(1) is inapplicable to the facts of this case because there was no collapse of a scaffold. However, even if plaintiff was working on what would become a permanent part of the building, he was exposed to an elevation-related hazard; he is therefore entitled to the protection of the statute (see e.g. John v. Baharestani, 281 A.D.2d 114, 119 [2001] ). The I-beams, ribs, and plywood that, together with concrete, would become the second floor “served, conceptually and functionally, as an elevated platform or scaffold” (Becerra v. City of New York, 261 A.D.2d 188, 189 [1999] ). Since “sound scaffolds ․ do not simply break apart” (Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003] ), plaintiff met his initial burden on his motion by showing that the I-beam flipped, causing him to fall (see Szpakowski v. Shelby Realty, LLC, 48 AD3d 268, 269 [2008], lv denied 12 NY3d 708 [2009]; Aragon v. 233 W. 21st St., 201 A.D.2d 353, 354 [1994] ). In addition, it is undisputed that there were no safety rails or netting on the day and at the site of plaintiff's accident (see Laquidara v. HRH Constr. Corp., 283 A.D.2d 169 [2001] ).

Defendants argue that there is a triable issue of fact as to the availability of safety harnesses (see Gallagher v. New York Post, 55 AD3d 488, 490 [2008], revd 14 NY3d 83 [2010]; but see Milewski v. Caiola, 236 A.D.2d 320 [1997] ). However, defendant general contractor admitted that there was no location to which a harness could have been tied. Therefore, defendants failed to raise the inference that plaintiff's failure to use a safety harness was the sole proximate cause of his injury (see Miglionico v. Bovis Lend Lease, Inc., 47 AD3d 561, 564-565 [2008] ). The affirmation of defendants' attorney, asserting that there were places to which a safety harness could have been tied, is entitled to no evidentiary weight (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563 [1980] ). Finally, even if plaintiff could be found recalcitrant for failing to use a harness, defendants' “failure to provide proper safety [equipment] was a more proximate cause of the accident” (see Milewski, 236 A.D.2d at 320; see also Blake, 1 NY3d at 290).