WALLACE v. STONEHENGE GROUP LTD

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

Peter WALLACE, et al., Appellants, v. STONEHENGE GROUP, LTD., et al., Respondents.

Decided: November 24, 2003

ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, and WILLIAM F. MASTRO, JJ. Larkin, Axelrod, Trachte & Tetenbaum, LLP, Newburg, N.Y. (James Alexander Burke of counsel), for appellants. Thomas M. Bona, P.C., White Plains, N.Y. (Robert M. Lefland and Brendon Fitzpatrick of counsel), for respondents.

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, Westchester County (Nastasi, J.), entered July 31, 2002, as granted the defendants' motion for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) and denied their cross motion for partial summary judgment on the issue of liability on that cause of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) is denied, that cause of action is reinstated, and the cross motion is granted.

 It is well-established that Labor Law § 240(1) imposes absolute liability upon a contractor or owner who fails to provide safety devices to an independent contractor at an elevated work site where the lack of such devices is a substantial factor in causing the independent contractor's injuries, even where the contractor or owner exercises no supervision, direction, or control over the independent contractor's work (see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898;  Madden v. Trustees of the Duryea Presbyt. Church, 210 A.D.2d 382, 620 N.Y.S.2d 424).

 The plaintiffs established their entitlement to partial judgment as a matter of law on the issue of liability by presenting evidence that no safety devices were provided (see Taeschner v. M & M Restorations, 295 A.D.2d 598, 745 N.Y.S.2d 41).   In opposition, the defendants failed to raise a triable issue of fact regarding liability.   While a plaintiff cannot recover where his or her conduct was the sole proximate cause of his or her injuries (see e.g. Lozada v. GBE Contr. Corp., 295 A.D.2d 482, 744 N.Y.S.2d 464), that defense was not available to the defendants under the circumstances of this case (see Vacanti v. Habasit Globe, 283 A.D.2d 935, 724 N.Y.S.2d 240;  DiVincenzo v. Tripart Dev., 272 A.D.2d 904, 709 N.Y.S.2d 271).

The defendants' remaining contentions are without merit.

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