MAKAJ v. METROPOLITAN TRANSPORTATION AUTHORITY (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Schulman, J.), dated October 20, 2003, which denied their motion for summary judgment on the issue of liability on the cause of action to recover damages for a violation of Labor Law § 240.

ORDERED that the order is affirmed, with costs.

On December 21, 2001, the plaintiff Prek Makaj, who was employed as a painter on a bridge restoration project, was injured when he fell from a staircase handrail on which he was standing while attempting to reach a ladder stored on the roof of a building on the job site.

 The plaintiffs made a prima facie showing of entitlement to judgment as a matter of law pursuant to Labor Law § 240(1) by demonstrating that Makaj fell as a result of the absence of safety devices while engaged in a work-related activity involving an elevation-related risk (see Hagins v. State of New York, 81 N.Y.2d 921, 922, 597 N.Y.S.2d 651, 613 N.E.2d 557;  Mariani v. New Style Waste Removal Corp., 269 A.D.2d 367, 702 N.Y.S.2d 113). Contrary to the defendant's argument, the fact that Makaj was engaged in preparation for the covered activity in which he was involved, rather than in the activity itself, did not defeat the claim under Labor Law § 240(1) (see Covey v. Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 954, 655 N.Y.S.2d 854, 678 N.E.2d 466;  Danielewski v. Kenyon Realty Co., 2 A.D.3d 666, 667, 770 N.Y.S.2d 97;  Cabri v. ICOS Corp. of Am., 240 A.D.2d 456, 457, 658 N.Y.S.2d 646).   In response, however, the defendant raised a triable issue of fact by demonstrating through the deposition testimony of the job-site supervisor that there may have been other ladders available on the work site that would have made it unnecessary to retrieve the ladder from the building roof or would have allowed Makaj to do so safely (see Montgomery v. Federal Express Corp, 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592).   Viewing this evidence in the light most favorable to the non-moving party, as we must (see Robinson v. Strong Mem. Hosp., 98 A.D.2d 976, 470 N.Y.S.2d 239), it was sufficient to raise a triable issue of fact as to the proximate cause of the subject accident, i.e., whether Makaj was provided with sufficient safety devices (see Centeno v. 80 Pine, 294 A.D.2d 326, 326, 741 N.Y.S.2d 884).   Accordingly, the plaintiffs' motion for summary judgment was properly denied (see Gregorio v. JM Dennis Const. Co., Corp., 13 A.D.3d 480, 787 N.Y.S.2d 93, Aslam v. Weiss, 308 A.D.2d 426, 764 N.Y.S.2d 210).