Appellate Division of the Supreme Court of New York, 2012

Luna v. Zoological Society of Buffalo, Inc.

Luna v. Zoological Society of Buffalo, Inc.
Appellate Division of the Supreme Court of New York · Decided December 28, 2012
101 A.D.3d 1745; 958 N.Y.2d 807
Luna v. Zoological Society of Buffalo, Inc.

Opinion of the Court

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained while working as a carpenter on a construction project for defendant. Supreme Court properly granted plaintiffs motion for partial summary judgment on liability with respect to the Labor Law § 240 (1) claim. Plaintiff sustained his initial burden of establishing that he was injured as the result of a fall from an elevated work surface and that *1746defendant failed to provide a sufficient safety device (see Ferris v Benbow Chem. Packaging, Inc., 74 AD3d 1831, 1832 [2010]; see generally Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). In opposition, defendant failed to raise a triable issue of fact whether plaintiffs “ ‘own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of [the] accident’ ” (Mazurett v Rochester City School Dist., 88 AD3d 1304, 1305 [2011], quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). We reject defendant’s contention that there is an issue of fact whether plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident. Although defendant submitted evidence that plaintiff was instructed not to work in a particular area and violated those instructions, “the nondelegable duty imposed upon the owner and general contractor under Labor Law § 240 (1) is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give [a worker] proper protection” (Long v Cellino & Barnes, P.C., 68 AD3d 1706, 1707 [2009] [internal quotation marks omitted]), which was not done here. Thus, “[t]he mere failure by plaintiff to follow safety instructions does not render plaintiff a recalcitrant worker” (Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106 [2006] [internal quotation marks omitted]). Present — Centra, J.P., Fahey, Valentino and Martoche, JJ.

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