YELLITZ v. Professional Contracting Methods, Third-Party Defendant-Respondent. (1997)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Barron, J.), entered July 25, 1996, which, after a jury trial, is in favor of the defendant and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with one bill of costs.

 In order to prevail in an action to recover damages based upon an alleged violation of Labor Law § 240(1), a plaintiff must prove that the statute was violated and that such violation was the proximate cause of the plaintiff's injuries (see, Duda v. Rouse Constr. Corp., 32 N.Y.2d 405, 410, 345 N.Y.S.2d 524, 298 N.E.2d 667;  see also, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 524, 493 N.Y.S.2d 102, 482 N.E.2d 898;  Bland v. Manocherian, 66 N.Y.2d 452, 497 N.Y.S.2d 880, 488 N.E.2d 810;  Keane v. Sin Hang Lee, 188 A.D.2d 636, 591 N.Y.S.2d 521;  Liverio v. Clover Leaf 82 Assocs., 186 A.D.2d 308, 309, 587 N.Y.S.2d 450;  Miller v. Long Is. Light. Co., 166 A.D.2d 564, 560 N.Y.S.2d 847;  Amedure v. Standard Furniture Co., 125 A.D.2d 170, 172, 512 N.Y.S.2d 912;  Mack v. Altmans Stage Light. Co., 98 A.D.2d 468, 470-471, 470 N.Y.S.2d 664;  Ryan v. Cenci, 95 A.D.2d 963, 964, 464 N.Y.S.2d 289).   Contrary to the plaintiffs' contention, the issue of proximate cause may be a separate question of fact (see, Landry v. Di Sarro Constr. Co., 149 A.D.2d 859, 861, 540 N.Y.S.2d 549, affd. 74 N.Y.2d 940, 550 N.Y.S.2d 274, 549 N.E.2d 476;  Avner v. 93rd St. Assn., 147 A.D.2d 414, 538 N.Y.S.2d 258;  Bauder v. First Fed. Sav. & Loan Assn. of Suffern, 128 A.D.2d 822, 513 N.Y.S.2d 343).   Accordingly, where the plaintiff was the only person to have witnessed the accident, the question of whether the accident was proximately caused by the violation of Labor Law § 240 was an issue of fact to be determined by the trier of fact (see, Russell v. Rensselaer Polytechnic Inst., 160 A.D.2d 1215, 1216, 555 N.Y.S.2d 480;   Parsolano v. County of Nassau, 93 A.D.2d 815, 817, 460 N.Y.S.2d 823).

 Further, the resolution of issues regarding the credibility of both expert and lay witnesses and the accuracy of their testimony are matters peculiarly within the province of the jury (see, Miller v. Long Is. Light. Co., supra, at 565, 560 N.Y.S.2d 847;  Norfleet v. New York City Tr. Auth., 124 A.D.2d 715, 716, 508 N.Y.S.2d 468;  Sheps v. Hall & Co., 112 A.D.2d 281, 491 N.Y.S.2d 726;  Chodos v. Flanzer, 109 A.D.2d 771, 486 N.Y.S.2d 86).   In light of the vague and sometimes contradictory trial testimony, the trial court's denial of the plaintiffs' motion to set aside the verdict was not improper (see, CPLR 4404;  Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Brodeur v. Cooper, 182 A.D.2d 666, 582 N.Y.S.2d 724;  Miller v. Long Is. Light. Co., supra;  Picciotto v. Molloy Colloy, 129 A.D.2d 619, 620, 514 N.Y.S.2d 405).

The plaintiffs' remaining contention is unpreserved for appellate review and, in any event, is without merit.

MEMORANDUM BY THE COURT.