Grove v. Cornell University ( 2010 )

Lahtinen, J.

(dissenting). Since we believe that the record contains factual issues regarding the Labor Law § 240 (1) cause of action, we respectfully dissent. The proof is viewed at this procedural point in the light most favorable to the party opposing summary judgment (see Kropp v Corning, Inc., 69 AD3d 1211, 1212 [2010]). Plaintiff was working at a height exceeding 30 feet in a basket affixed to a boom lift. It is undisputed that the gate on the basket was not functioning properly and did not close as designed. Plaintiff testified at his deposition that he was familiar with the self-closing safety feature of the gate having used baskets so equipped previously, and that he was unaware of the gate’s defective condition before his accident. Plaintiff was located immediately adjacent to the broken gate and, while working, he fell out of that gate. A jury could determine that this safety device was defective, plaintiff was not aware of the defect and he fell through the opening created by the defect.

Plaintiff was also supplied with a harness and lanyard that he conceded was either not attached or improperly attached at the time he fell. Neglecting to use an available safety device can result in dismissal when a defendant proves that a worker’s “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of [the worker’s] accident” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004] [emphasis added]). Indeed, a “defendant may be granted summary judgment if the record establishes conclusively that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by [the] plaintiff’s conduct” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003] [emphasis added]). A plaintiff, however, can defeat summary judgment by showing that a “ ‘violation [of section 240 (1)] was a contributing cause of his [or her] fall’ ” (id. at 289, quoting Duda v Rouse Constr. Corp., 32 NY2d 405, 410 [1973]).

Here, there is sufficient evidence in the record from which a jury could find that the failure to provide an adequate safety device, to wit, a basket with a properly operating, self-closing gate, in violation of Labor Law § 240 (1), was a contributing cause to plaintiffs fall. Moreover, defendants have not shown conclusively that the defective gate on the basket was not a proximate cause of this accident, nor have defendants established that plaintiffs conduct was the sole proximate cause of the accident (cf. Torres v Monroe Coll., 12 AD3d 261, 262 [2004]). A jury should make those determinations (see Cammon v City of New York, 21 AD3d 196, 200 [2005]). While plaintiff was properly denied summary judgment on this record (see Tronolone v Praxair, Inc., 22 AD3d 1031, 1033 [2005]), we are not persuaded that defendants established that they were entitled to summary dismissal. Accordingly, we would modify Supreme Court’s order by reversing so much thereof as granted defendants’ cross motion for summary judgment dismissing plaintiff’s Labor Law § 240 (1) cause of action.

Garry, J., concurs. Ordered that the order is affirmed, with costs.