CONSTRUCTION WORKER FALLS OFF SCAFFOLD 3 FEET FROM TOP OF WALL TO GROUND; GRANTED SUMMARY JUDGMENT UNDER N.Y.S. LABOR LAW

Court: Supreme Court, Appellate Division, First Department, New York

Case: Michael Ervin v. Consolidated Edison of New York

Date: March 13, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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Order, Supreme Court, Bronx County (John A. Barone, J.), entered January 31, 2011, which, insofar as appealed from, denied plaintiffs' motion for summary judgment on the cause of action alleging violation of Labor Law Sec. 240(1), unanimously reversed, on the law, without costs, and the motion granted.

In this action for personal injuries, plaintiff Michael Ervin, was injured while working at a construction site owned by defendant Consolidated Edison where an electrical substation was being built, when a temporary structure that he was descending to gain access to grade level from the top of a concrete wall, approximately three feet high, gave way causing him to fall. It is irrelevant whether the structure constituted a staircase, ramp, or passageway since it was a safety device that failed to afford him proper protection from a gravity‑related risk (see Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 8-10, 917 N.Y.S.2d 130 [2011]). Accordingly, plaintiff is entitled to judgment as a matter of law on his claim pursuant to Labor Law Sec. 240(1).

Defendants' argument, raised for the first time on appeal, that an issue of fact exists as to whether plaintiff was the sole proximate cause of his injury is unpreserved and, in any event, lacks merit. Defendants failed to submit any evidence showing that plaintiff knew or should have known that he was expected to employ some other device (see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39_40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004]; Auriemma, 82 A.D.3d at 11, 917 N.Y.S.2d 130). To the contrary, the project manager testified that there were no A‑frame ladders or extension ladders provided for access to the structure.

We have considered defendants' remaining contentions and find them unavailing.

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