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Liberto CHACON, Appellant, v. NEW YORK UNIVERSITY, et al., Respondents (and a Third-Party Action).
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated January 16, 1998, which denied his motion for partial summary judgment on his cause of action asserted under Labor Law § 240(1).
ORDERED that the order is affirmed, with costs to the respondent New York University.
The plaintiff, an employee of the third-party defendant and subcontractor Allstate Demolition Contracting Corporation (hereinafter Allstate), was assigned to the task of creating holes in the floor of the second story of a building owned by the defendant New York University (hereinafter NYU). While standing on the floor to be demolished, the plaintiff used a sledgehammer to make the holes on the portions of the floor which had been marked with spray paint by the job superintendent. Moments before the accident occurred, Allstate's labor foreman had instructed the plaintiff not to stand on the floor, but rather to stand on an exposed structural beam immediately adjacent to the area that he was demolishing. In fact, the foreman moved the plaintiff onto the beam. Nevertheless, the plaintiff admitted that upon resuming the demolition, he stood on the floor, not the beam, so that when the floor around him gave way, he fell through to the first floor.
The plaintiff commenced this action against NYU and the general contractor, Corporate Interiors Contracting Co., Inc. (hereinafter CIC). CIC commenced a third-party action against Allstate for indemnification. The plaintiff thereafter moved for summary judgment against NYU and CIC on his cause of action under Labor Law § 240(1), claiming that the lack of proper safety measures was the proximate cause of the accident. The Supreme Court denied the motion, finding issues of fact as to whether or not a violation of the statute was a proximate cause of the plaintiff's injuries.
In order to prevail on a Labor Law § 240(1) claim, the plaintiff must show a violation of the statute 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; see also, Keane v. Lee, 188 A.D.2d 636, 591 N.Y.S.2d 521). In the present case, there were questions of fact regarding whether the beam upon which the plaintiff was instructed to stand constituted “proper protection”, and as to whether the alleged failure to provide proper protection was a proximate cause of the plaintiff's injuries (see, Bland v. Manocherian, supra; see also, Miller v. Long Is. Light. Co., 166 A.D.2d 564, 560 N.Y.S.2d 847). Accordingly, the Supreme Court properly denied the plaintiff's motion for partial summary judgment on his cause of action asserted under Labor Law § 240(1).
MEMORANDUM BY THE COURT.
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Decided: February 01, 1999
Court: Supreme Court, Appellate Division, Second Department, New York.
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