LABODIN v. STATE (1997)

In a claim to recover damages for personal injuries, etc., the defendant appeals from an order of the Court of Claims (McNamara, J.), dated August 1, 1996, which granted the claimants' motion for partial summary judgment on the issue of liability under Labor Law § 240(1).

ORDERED that the order is affirmed, with costs.

Contrary to the State's contention, Labor Law § 240(1) requires safe scaffolding and other devices for the protection of workers (see, Alderman v. State of New York, 139 Misc.2d 510, 515, 528 N.Y.S.2d 280;  see also, Pritchard v. Murray Walter, Inc., 157 A.D.2d 1012, 550 N.Y.S.2d 500).

 In support of their motion for partial summary judgment, the claimants submitted proof in evidentiary form that the State failed to provide proper protection and that this failure was a proximate cause of the injuries to the claimant Viktor Labodin.   The State's opposition to the claimants' motion for partial summary judgment, an affirmation by counsel, is unavailing (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Accordingly, the State failed to raise a bona fide issue of fact sufficient to defeat the claimants' motion (see, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068).

 Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker “proper protection”, absolute liability is unavoidable under Labor Law § 240(1) irrespective of any contributory negligence (see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523, 493 N.Y.S.2d 102, 482 N.E.2d 898).

MEMORANDUM BY THE COURT.