WORKER GETS SUMMARY JUDGMENT ON LABOR LAW CLAIM DUE TO HOISTED PIPE DROPPING AND STRIKING HIM; DEFENDANTS FAILED TO PROVIDE AN ADEQUATE SAFETY DEVICE

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

Case: Agim Dedndreaj v. ABC Carpet & Home

Date: March 13, 2012

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

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Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered April 7, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law Sec. 240(1) cause of action, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established his prima facie entitlement to summary judgment by showing that defendants' failure to provide an adequate safety device proximately caused a pipe that was in the process of being hoisted to fall and strike him (see Arnaud v. 140 Edgecomb LLC, 83 A.D.3d 507, 922 N.Y.S.2d 292 [2011]).

In opposition, defendants failed to raise a triable issue of fact. Even assuming that plaintiff disregarded warnings by walking through the passageway and under the pipe, such conduct was not the sole proximate cause of the injury (see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556 [1993]). Nor may defendants rely upon the "recalcitrant worker" defense given that plaintiff was following his superior through the passageway, which was the only means of exiting the room (see Ramirez v. Shoats, 78 A.D.3d 515, 517, 911 N.Y.S.2d 310 [2010]).

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