Kumar v. Stahlunt Associates

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 15, 2002, which, to the extent appealed from, denied plaintiffs motion for partial summary judgment on liability with respect to his Labor Law § 240 (1) claim, unanimously affirmed, without costs.

The differing accounts of the manner in which plaintiff’s construction site accident occurred and the conflicting expert affidavits as to which protective devices should have been utilized raise triable issues of fact as to whether the safety devices provided afforded proper protection (see Weber v 1111 Park Ave. Realty, 253 AD2d 376 [1998]), and whether plaintiffs conduct constituted the sole proximate cause of the accident (see Bahrman v Holtsville Fire Dist., 270 AD2d 438 [2000]). Based on this record, we reject defendants-respondents’ contention that plaintiff was a recalcitrant worker (see Jastrzebski v North Shore School Dist., 223 AD2d 677 [1996], affd 88 NY2d 946 [1996]). Concur—Tom, J.P., Sullivan, Ellerin, Marlow and Gonzalez, JJ.