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

Michael FLORIO, et al., appellants-respondents, v. LLP REALTY CORP., et al., respondents-appellants.

Decided: March 27, 2007

REINALDO E. RIVERA, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, and THOMAS A. DICKERSON, JJ. Rosenberg & Gluck, LLP, Holtsville, N.Y. (Michael V. Buffa of counsel), for appellants-respondents. Michael F.X. Manning, Melville, N.Y. (David R. Holland of counsel), for respondents-appellants.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 14, 2005, as denied their motion for summary judgment on the issue of liability under Labor Law § 240(1), and the defendants cross-appeal from so much of the same order as denied that branch of their cross motion which was for summary judgment dismissing the cause of action based on Labor Law § 240(1).

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Labor Law § 240(1) imposes liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards (see Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 490-491, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932;  Valensisi v. Greens at Half Hollow, LLC, 33 A.D.3d 693, 695, 823 N.Y.S.2d 416).

To prevail on a cause of action under Labor Law § 240(1), a plaintiff must demonstrate that he was injured during “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240[1];  Joblon v. Solow, 91 N.Y.2d 457, 464, 672 N.Y.S.2d 286, 695 N.E.2d 237;  Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577, 561 N.Y.S.2d 892, 563 N.E.2d 263;  Spaulding v. S.H.S. Bay Ridge, 305 A.D.2d 400, 401, 759 N.Y.S.2d 179).   Once Labor Law § 240(1) is shown to be applicable, in order to establish prima facie entitlement to judgment as a matter of law, a plaintiff must demonstrate that an owner, contractor, or their agent breached a duty under the statute, and that the breach proximately caused the plaintiff's injury (see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 559, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Woszczyna v. BJW Assoc., 31 A.D.3d 754, 755, 820 N.Y.S.2d 289;  Lightfoot v. State of New York, 245 A.D.2d 488, 489, 666 N.Y.S.2d 706).   A defendant cannot be held liable if the plaintiff's actions were the sole proximate cause of the accident (see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39-40, 790 N.Y.S.2d 74, 823 N.E.2d 439;  Blake v. Neighborhood Hous. Serv. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757;  Marin v. Levin Props., LP, 28 A.D.3d 525, 812 N.Y.S.2d 645;  Morin v. Machnick Bldrs., 4 A.D.3d 668, 669, 772 N.Y.S.2d 388).

 Here, the parties failed to establish, prima facie, whether the injured plaintiff had access to properly placed and adequate safety devices (see Marin v. Levin Props., supra at 526, 812 N.Y.S.2d 645;  Palacios v. Lake Carmel Fire Dept., Inc., 15 A.D.3d 461, 462-463, 790 N.Y.S.2d 185;  cf. Orellana v. American Airlines, 300 A.D.2d 638, 753 N.Y.S.2d 114).   Moreover, the Supreme Court properly found that a triable issue of fact exists as to whether the injured plaintiff's conduct in using a forklift to access the air conditioning unit was the sole proximate cause of his accident (see Marin v. Levin Props., supra;  Cahill v. Triborough Bridge & Tunnel Auth., supra at 40, 790 N.Y.S.2d 74, 823 N.E.2d 439;  cf. Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 814 N.Y.S.2d 589, 847 N.E.2d 1162).   Accordingly, the plaintiffs' motion, and that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action based on Labor Law § 240(1), were properly denied.

The defendants' contention regarding the plaintiffs' Labor Law § 241(6) claim is not properly before this court, and their remaining contentions are without merit.

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