Mora v. Wythe & Kent Realty LLC

Appellate Division of the Supreme Court of the State of New York

Apr 2, 2019

8866 303432/14

Versions:

Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for appellants.

William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about October 26, 2017, which granted plaintiff‘s motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff‘s deposition testimony establishes that a proximate cause of his injury was the unsecured scaffold planks which tipped when he stepped on them (see Kristo v Board of Ed. of the City of N.Y., 134 AD3d 550 [1st Dept 2015]). Thus, contrary to defendants’ contention, plaintiff was not the sole proximate cause of his accident and we reject defendant‘s recalcitrant worker defense (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003] [“if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it“]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 2, 2019

CLERK