GALVAN v. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated March 8, 2005, which denied his motion for summary judgment on the issue of liability on the cause of action pursuant to Labor Law § 240(1).

ORDERED that the order is affirmed, with costs.

 To prevail on a cause of action pursuant to Labor Law § 240(1), a plaintiff must prove both that the statute was violated and that the violation was a proximate cause of his injuries (see Bland v. Manocherian, 66 N.Y.2d 452, 497 N.Y.S.2d 880, 488 N.E.2d 810;  Lightfoot v. State of New York, 245 A.D.2d 488, 666 N.Y.S.2d 706).   The statute applies to both “falling workers” and “falling objects” (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085).   Here, the plaintiff failed to meet his prima facie burden of establishing entitlement to summary judgment on a “falling object” theory (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Narducci v. Manhasset Bay Assoc., supra ).   The proffered evidence did not demonstrate prima facie that the C-clamp which struck the plaintiff “fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci v. Manhasset Bay Assoc., supra at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  see Rosado v. Briarwoods Farm, Inc., 19 A.D.3d 396, 796 N.Y.S.2d 394;  Gambino v. Massachusetts Mut. Life Ins. Co., 8 A.D.3d 337, 777 N.Y.S.2d 713;  see also Atkinson v. State of New York, 20 A.D.3d 739, 798 N.Y.S.2d 230;  Love v. New York State Thruway Auth., 17 A.D.3d 1000, 794 N.Y.S.2d 166).   In any event, the defendants raised issues of fact as to the manner in which the C-clamp fell, i.e., whether it was deliberately thrown off the side of the scaffolding or whether it was accidentally dropped or fell (see Roberts v. General Elec. Co., 97 N.Y.2d 737, 742 N.Y.S.2d 188, 768 N.E.2d 1127).

The defendants also raised issues of fact as to the manner in which the accident occurred, which precludes summary judgment based on a “falling worker” theory (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Cajamarca v. Interconex, Inc., 8 A.D.3d 602, 778 N.Y.S.2d 911;  Tylman v. School Constr. Auth., 3 A.D.3d 488, 770 N.Y.S.2d 433;  cf. Ramos v. Champion Combustion, 12 A.D.3d 227, 786 N.Y.S.2d 1).   Accordingly, the Supreme Court properly denied the plaintiff's motion.