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Supreme Court, Appellate Division, First Department, New York.

Humberto PARDO, Plaintiff-Appellant, v. BIALYSTOKER CENTER & BIKUR CHOLIM, INC., et al., Defendants-Respondents.

Aris Development Corp., Third-Party Plaintiff-Respondent, v. Ultimate Construction Corp., Third-Party Defendant-Respondent.

Decided: September 23, 2003

BUCKLEY, P.J., NARDELLI, TOM, MAZZARELLI and GONZALEZ, JJ. Joseph Santora, for Plaintiff-Appellant. Danielle M. Regan, Alan S. Adolph, for Defendants-Respondents. Alan S. Adolph, for Third-Party Plaintiff-Respondent. Sim R. Shapiro, for Third-Party Defendant-Respondent.

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about September 12, 2002, and order, same court (Carol Edmead, J.), entered on or about February 27, 2003, which insofar as appealed from, denied plaintiff's motion for partial summary judgment on liability on his cause of action under Labor Law § 240(1) and precluded plaintiff from asserting, at trial, Labor Law claims based on the alleged failure of defendants to secure the subject scaffold to the workplace wall by the use of “ tie-ins,” unanimously modified, on the law, all provisions that plaintiff is barred from offering evidence that defendants violated the Labor Law by their alleged failure to employ tie-ins vacated, and otherwise affirmed, without costs.

 Plaintiff should have been permitted to offer evidence respecting defendants' alleged failure to use tie-ins.   A plaintiff under Labor Law § 240(1) need only show “ ‘that his injuries were at least partially attributable to defendant[s'] failure to take statutorily mandated safety measures to protect him from risks arising from an elevation differential’ ” (see Crimi v. Neves Assocs., 306 A.D.2d 152, 761 N.Y.S.2d 186, 188, quoting Nunez v. Bertelsman Prop., 304 A.D.2d 487, 488, 758 N.Y.S.2d 643).   There may be more than one proximate cause of a workplace accident (see Bjelicic v. Lynned Realty Corp., 152 A.D.2d 151, 155, 546 N.Y.S.2d 1020, appeal dismissed 75 N.Y.2d 947, 555 N.Y.S.2d 693, 554 N.E.2d 1281).   The owner and general contractor have a duty to provide plaintiff worker with “proper protection” from elevation-related hazards (see Lanza v. Cohen, 236 A.D.2d 287, 653 N.Y.S.2d 583, lv. dismissed 90 N.Y.2d 845, 660 N.Y.S.2d 871, 683 N.E.2d 777), and even if plaintiff could be deemed recalcitrant for having not used a harness, there would still be a jury question as to whether the failure to provide a properly secured scaffold was a proximate cause of the accident (cf.  Milewski v. Caiola, 236 A.D.2d 320, 654 N.Y.S.2d 738;  Aragon v. 233 W. 21st St., Inc., 201 A.D.2d 353, 607 N.Y.S.2d 642).

 The testimony of plaintiff's co-worker is relevant, and may be offered by any party, provided that it is offered in admissible form. Even if it is found, however, that the co-worker was properly protected from the fall by his safety equipment, there is no basis for concluding as a matter of law that the same safety equipment would have ensured that plaintiff would fall exactly as the co-worker did, and that plaintiff would also sustain only minor injuries.   There are too many variables to permit such a conclusion at this juncture.   Moreover, a jury could find that plaintiff's failure, if any, to use safety equipment properly amounted to no more than contributory negligence, irrelevant in a § 240(1) case (see Hernandez v. 151 Sullivan Tenant Corp., 307 A.D.2d 207, 762 N.Y.S.2d 603).

We decline to grant plaintiff's belated request to plead a violation of the Industrial Code, Rule 23-5.8(g) (12 NYCRR § 23-5.8[g] ), particularly since the record shows that plaintiff unequivocally waived his Labor Law § 241(6) cause of action.