Tsaousis v. State

Appeal from an order of the Court of Claims (Diane L. Fitzpatrick, J.), entered March 28, 2006 in a personal injury action. The order denied claimants’ motion for partial summary judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Claimants commenced this action seeking damages for injuries sustained by John Tsaousis (claimant) when he fell approximately 13 feet to the ground from the platform of a hydraulic lift. The Court of Claims properly denied claimants’ motion seeking partial summary judgment on Labor Law § 240 (1) liability. Claimants’ own submissions raise triable issues of fact whether defendant violated the statute, whether claimant’s injuries were the result of any such violation, and whether claimant’s conduct was the sole proximate cause of the accident (see Durkin v Long Is. Power Auth., 37 AD3d 400, 401 [2007]; see generally Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]; Florio v LLP Realty Corp., 38 AD3d 829, 830 [2007]). Further, defendant’s alleged violation of certain Industrial Code provisions, even if proven by claimants, does not establish as a matter of law that defendant also violated Labor Law § 240 (1) (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684 [2005]). Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Green, JJ.