Berrios v. 735 Avenue of the Americas, LLC , 919 N.Y.2d 16 ( 2011 )

Defendants argue, for the first time on appeal, that Labor Law § 240 (1) is inapplicable to the facts of this case because there was no collapse of a scaffold. However, even if plaintiff was working on what would become a permanent part of the building, he was exposed to an elevation-related hazard; hé is therefore entitled to the protection of the statute (see e.g. John v Baharestani, 281 AD2d 114, 119 [2001]). The I-beams, ribs, and plywood that, together with concrete, would become the second floor “served, conceptually and functionally, as an elevated platform or scaffold” (Becerra v City of New York, 261 AD2d 188, 189 [1999]). Since “sound scaffolds ... do not simply break apart” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003]), plaintiff met his initial burden on his motion by showing that the I-beam flipped, causing him to fall (see Szpakowski v Shelby Realty, LLC, 48 AD3d 268, 269 [2008], lv denied 12 NY3d 708 [2009]; Aragon v 233 W. 21st St., 201 AD2d 353, 354 [1994]). In addition, it is undisputed that there were no safety rails or netting on the day and at the site of plaintiffs accident (see Laquidara v HRH Constr. Corp., 283 AD2d 169 [2001]).

Defendants argue that there is a triable issue of fact as to the availability of safety harnesses (see Gallagher v New York Post, 55 AD3d 488, 490 [2008], revd 14 NY3d 83 [2010]; but see Milewski v Caiola, 236 AD2d 320 [1997]). However, defendant general contractor admitted that there was no location to which a harness could have been tied. Therefore, defendants failed to raise the inference that plaintiffs failure to use a safety harness was the sole proximate cause of his injury (see Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561, 564-565 [2008]). The affirmation of defendants’ attorney, asserting that there were places to which a safety harness could have been tied, is entitled to no evidentiary weight (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Finally, even if plaintiff could be found recalcitrant for failing to use a harness, defendants’ “failure to provide proper safety [equipment] was a more proximate cause of the accident” (see Milewski, 236 AD2d at 320; see also Blake, 1 NY3d at 290). Concur — Gonzalez, EJ., Tom, Acosta, Richter and Román, JJ.