LAGARES v. CARRIER TERMINAL SERVICES INC

Reset A A Font size: Print

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

Jose M. LAGARES and Carmen J. Ramos, Plaintiffs–Respondents, v. CARRIER TERMINAL SERVICES, INC., Defendant–Appellant.

1070

Decided: November 15, 2019

PRESENT:  SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND WINSLOW, JJ. SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FROMEN, ATTORNEYS AT LAW, P.C., SNYDER, MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries that Jose M. Lagares (plaintiff) sustained when he fell through the roof of defendant's building while working on a project involving the roof's removal and replacement.  Defendant appeals from an order that, inter alia, granted plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law § 240(1) and denied those parts of defendant's cross motion seeking summary judgment dismissing the section 240 (1) cause of action and the section 241(6) claim.  We affirm.

Defendant contends that Supreme Court erred in granting plaintiffs' motion for partial summary judgment on the issue of liability with respect to the Labor Law § 240(1) cause of action.  We reject that contention.  Plaintiffs met their initial burden on the motion by establishing that defendant's failure to provide any fall protection was a proximate cause of the accident (see Lord v. Whelan & Curry Constr. Servs., Inc., 166 A.D.3d 1496, 1497, 88 N.Y.S.3d 322 [4th Dept. 2018];  Peters v. Kissling Interests, Inc., 63 A.D.3d 1519, 1520, 880 N.Y.S.2d 797 [4th Dept. 2009], lv denied 13 N.Y.3d 903, 895 N.Y.S.2d 292, 922 N.E.2d 879 [2009];  Whiting v. Dave Hennig, Inc., 28 A.D.3d 1105, 1106, 815 N.Y.S.2d 382 [4th Dept. 2006]).  In opposition, defendant failed to raise a triable issue of fact whether plaintiff's own negligence was the sole proximate cause of his injuries.  Contrary to defendant's contention, plaintiff's mere failure to follow safety instructions cannot be said to be the sole proximate cause of the accident (see Luna v. Zoological Socy. of Buffalo, Inc., 101 A.D.3d 1745, 1746, 958 N.Y.S.2d 807 [4th Dept. 2012];  see also Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556 [1993];  Nephew v. Klewin Bldg. Co., Inc., 21 A.D.3d 1419, 1420, 804 N.Y.S.2d 157 [4th Dept. 2005]).  Rather, plaintiff's alleged conduct would amount only to comparative fault and thus cannot bar recovery under the statute (see generally LoVerde v. 8 Prince St. Assoc., LLC, 35 A.D.3d 1224, 1226, 829 N.Y.S.2d 300 [4th Dept. 2006]).

In light of our determination, defendant's contention that the court erred in denying that part of its cross motion seeking summary judgment dismissing plaintiffs' Labor Law § 241(6) claim is academic (see Wilk v. Columbia Univ., 150 A.D.3d 502, 503, 57 N.Y.S.3d 5 [1st Dept. 2017]).