TOUNKARA v. FERNICOLA

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Balla TOUNKARA, Plaintiff-Appellant-Respondent, v. Anthony FERNICOLA, et al., Defendants-Respondents.

[And a Third-Party Action] Anthony Fernicola, et al., Second Third-Party Plaintiffs-Respondents, v. Mt. Moriah, Inc., et al., Second Third-Party Defendants-Respondents-Appellants.

Decided: January 13, 2011

MAZZARELLI, J.P., SAXE, McGUIRE, FREEDMAN, ABDUS-SALAAM, JJ. Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for appellant-respondent. Dillon Horowitz & Goldstein LLP, New York (Michael M. Horowitz of counsel), for respondents-appellants. Shaub, Ahmuty, Citrin & Spratt LLP, New York (Gerard S. Rath of counsel), for respondents.

Order, Supreme Court, Bronx County (Lucy Billings, J.), entered June 30, 2009, which denied plaintiff's motion for summary judgment on his Labor Law § 240(1) and § 241(6) claims and denied the cross motion by second third-party defendants for summary judgment dismissing the claims against them, unanimously modified, on the law, plaintiff's motion granted with respect to his § 240(1) and § 241(6) claims, and otherwise affirmed, without costs.

Plaintiff made a prima facie showing of defendants' liability under § 240(1) by asserting that defendants failed to provide him with an adequate safety device, and that such failure was a proximate cause of the accident. In opposition, defendants failed to raise a triable issue of fact as to whether the absence of such a device, or plaintiff's own acts or omissions, constituted the sole proximate cause of the accident (see Campuzano v. Board of Educ. of City of N.Y., 54 AD3d 268 [2008] ). Even if plaintiff knew that appropriate safety devices were “readily available” (albeit not in the immediate vicinity of the accident), there is no evidence that plaintiff “knew he was expected to use” the safety devices for the assigned task. There is no evidence that plaintiff received any instructions on how to perform the task, including directions to use any specified safety devices. Nor is there evidence of any “standing order” conveyed to workers, directing them to use safety devices in performing such a task (see Gallagher v. New York Post, 14 NY3d 83, 88 [2010] ). Accordingly, plaintiff was entitled to summary judgment on his § 240(1) claim.

Additionally, in the absence of any showing by defendant that the safety devices were adequate protection for the task, defendant failed to satisfy its burden to present evidence sufficient to raise a triable issue of fact as to its comparative negligence defense to plaintiff's § 241(6) claim predicated on the Industrial Code (12 NYCRR) § 23-1.7(b)(1) with regard to “hazardous openings” (see generally Olshewitz v. City of New York, 59 AD3d 309 [2009]; Catarino v. State of New York, 55 AD3d 467 [2008] ).