CAZHO v. [And Other Third-Party Actions] (2022)

Order, Supreme Court, Bronx County (Adrian Armstrong, J.), entered on or about September 17, 2020, which granted plaintiffs’ motion for partial summary judgment as to liability on their Labor Law § 240(1) claim, and order, same court and Justice, entered October 15, 2021, which, to the extent appealed from, denied Urban's motion for summary judgment dismissing the Labor Law § 240(1) claim, unanimously affirmed, without costs.

While working on the roof of a residential building during a renovation project, plaintiff Manuel Cazho fell through an opening while moving a skylight cover with a coworker.  Plaintiffs established their prima facie entitlement to summary judgment on their Labor Law § 240(1) claim by submitting evidence showing that defendant failed to provide any safety device or equipment to afford plaintiff proper protection from such an elevation-related hazard (see Angamarca v. New York City Partnership Hous. Dev. Fund Co., Inc., 56 A.D.3d 264, 265, 866 N.Y.S.2d 659 [1st Dept. 2008];  Kielar v. Metropolitan Museum of Art, 55 A.D.3d 456, 458, 866 N.Y.S.2d 629 [1st Dept. 2008]).  Plaintiffs were not required to submit any expert testimony concerning the required safety device (see Rubio v. New York Proton Mgt., LLC, 192 A.D.3d 438, 439, 143 N.Y.S.3d 350 [1st Dept. 2021];  Ortega v. City of New York, 95 A.D.3d 125, 128, 940 N.Y.S.2d 636 [1st Dept. 2012]).

Defendant failed to submit evidence sufficient to raise an issue of fact as to whether Cazho's actions were the sole proximate cause of the accident.  Cazho was following the directions of his supervisor to move the skylight cover when he walked into the opening and fell.  “[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence.  It is absolutely clear that if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” (Kielar v. Metropolitan Museum of Art, 55 A.D.3d 456, 458, 866 N.Y.S.2d 629 [1st Dept. 2008] [internal quotations and citations omitted]).

In light of the foregoing, the issue of Labor Law § 241(6) is academic (see Jerez v. Tishman Constr. Corp. of N.Y., 118 A.D.3d 617, 989 N.Y.S.2d 465 [1st Dept. 2014]).