Owczarek v. Austin Co.

Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered August 12, 2004 in a personal injury action. The order granted plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs. Memorandum: In this action to recover damages for injuries sustained by Gregory D. Owczarek (plaintiff) when he fell from scaffolding at the site of a wall demolition, defendants appeal from an order granting plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Supreme Court properly granted plaintiffs’ motion. Plaintiffs met their initial burden by demonstrating that plaintiff was engaged in a protected activity and that his accident involved an elevation-related hazard within the ambit of the statute (see Ward v Cedar Key Assoc., L.P., 13 AD3d 1098 [2004], citing Melber v 6333 Main St., 91 NY2d 759, 762-763 [1998]). “Plaintiff[s] further established the requisite causal link between [plaintiffs] injuries and the violation of defendants’ nondelegable duty to ensure that the [scaffolding] was ‘so constructed, placed and operated as to give proper protection’ to plaintiff’ (id. at 1098; see Patrick v People, Inc., 11 AD3d 990, 990-991 [2004]). Defendants failed to raise a triable issue of fact concerning whether the statute was violated or whether the conduct of plaintiff was the sole proximate cause of his injuries (see Ward, 13 AD3d 1098 [2004]; Patrick, 11 AD3d at 991; Alligood v Hospitality W., LLC, 8 AD3d 1102 [2004]; Dahl v Armor Bldg. Supply, 280 AD2d 970, 971 [2001]). Instead, defendants established merely that plaintiff might have been comparatively at fault for the accident, which “ ‘has no bearing on defendants’ [1004] liability under the statute’ ” (Alligood, 8 AD3d at 1102). Present—Scudder, J.P., Kehoe, Martoche, Smith and Hayes, JJ.