Patterson v. Kummar Development Corp.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied defendants’ cross motion for partial summary judgment dismissing the Labor Law § 240 (1) claim but erred in denying plaintiffs’ motion for partial summary judgment on that claim. Plaintiffs established that James Patterson (plaintiff) fell from an elevated surface due to the absence of any safety devices (see generally, Rocovich v Consolidated Edison Co., 78 NY2d 509, 513), and defendants failed to raise a triable issue of fact. Defendants submitted no evidence to support their contention that the actions of plaintiff were “the sole proximate cause of his injuries” (Weininger v Hagedorn & Co., 91 NY2d 958, 960, rearg denied 92 NY2d 875). We thus modify the order by granting plaintiffs’ motion. (Appeals from Order of Supreme Court, Niagara County, Koshian, J. — Summary Judgment.) Present— Hayes, J. P., Hurlbutt, Scudder, Kehoe and Lawton, JJ.