State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 11, 2014 518328 

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MARK FABIANO et al.,

Respondents,

v MEMORANDUM AND ORDER

STATE OF NEW YORK,

Appellant.

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Calendar Date: October 15, 2014

Before: Lahtinen, J.P., McCarthy, Egan Jr., Lynch and

 Clark, JJ.

__________

Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly

of counsel), for appellant.

Sacks & Sacks LLP, New York City (Scott N. Singer of

counsel), for respondents.

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Lahtinen, J.P.

Appeal from an order of the Court of Claims (Milano, J.),

entered October 10, 2013, which, among other things, granted

claimants' motion for partial summary judgment on the issue of

liability.

Claimant Mark Fabiano (hereinafter claimant) was employed

by a contractor hired to paint one of defendant's bridges and was

injured when he stepped on a scaffold plank that collapsed,

causing him to fall to the pavement below and sustain injuries. 

Claimant and his wife, derivatively, thereafter commenced this

action, asserting negligence and, as relevant here, violations of

Labor Law §§ 240 (1) and 241 (6). Following discovery, claimants

moved for partial summary judgment with respect to Labor Law
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§ 240 (1) liability and defendant cross-moved for summary

judgment dismissing all causes of action. The Court of Claims

granted claimants' motion and denied defendant's cross motion and

defendant now appeals.

We affirm. Pursuant to Labor Law § 240 (1), contractors

and owners are required to provide adequate safety devices – such

as scaffolding, ladders or hangers – to afford proper protection

against elevation-related hazards, and the failure to do so will

result in liability for any injuries that are proximately caused

by such failure (see Jackson v Heitman Funds/191 Colonie LLC, 111

AD3d 1208, 1209 [2013]; Silvia v Bow Tie Partners, LLC, 77 AD3d

1143, 1144 [2010]). On this motion for partial summary judgment,

defendant concedes that claimants demonstrated a prima facie

showing of entitlement to judgment upon the collapse of the

scaffold and, thus, the burden shifted to it to raise a question

of fact about whether there was a statutory violation and whether

claimant's own acts or omissions were the sole proximate cause of

his accident (see Blake v Neighborhood Hous. Servs. of N.Y. City,

1 NY3d 280, 289 n 8 [2003]; Rosier v Stoeckeler, 101 AD3d 1310,

1312 [2012]). 

To that end, defendant alleged that claimant was

recalcitrant in, among other things, failing to use an available

safety harness. With respect to such defense, liability pursuant

to Labor Law § 240 (1) does not attach when safety devices are

readily available at the work site and a claimant knows that he

or she is expected to use them but, for no good reason, chooses

not to and such omission is the sole proximate cause of the

accident (see Gallagher v New York Post, 14 NY3d 83, 88 [2010];

Portes v New York State Thruway Auth., 112 AD3d 1049, 1050

[2013], lv dismissed 22 NY3d 1167 [2014]; Silvia v Bow Tie

Partners, LLC, 77 AD3d at 1144). However, where a device

intended to support a worker at an elevated height fails and that

failure is a proximate cause of the accident, it is "conceptually

impossible for a statutory violation (which serves as a proximate

cause for a [claimant's] injury) to occupy the same ground as a

[claimant's] sole proximate cause for the injury" (Portes v New

York State Thruway Auth., 112 AD3d at 1051, quoting Blake v

Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 290). 
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Here, the facts are undisputed that, in an effort to assist

with the construction of a platform, claimant stepped onto a

plank on the existing scaffold, which was the primary safety

device erected for the work, and the plank collapsed, causing

claimant to fall and sustain his injuries. Accordingly,

claimant's decision not to wear an available safety harness, or

employ other safety measures that might have been available,

could not have been the sole proximate cause of the accident, and

the Court of Claims correctly awarded claimants partial summary

judgment on the issue of liability with respect to their Labor

Law § 240 (1) claim (see Hagins v State of New York, 81 NY2d 921,

922-923 [1993]; Portes v New York State Thruway Auth., 112 AD3d

at 1050-1051; Hanvey v Falke's Quarry, Inc., 50 AD3d 1237, 1238 n

[2008]; Kouros v State of New York, 288 AD2d 566, 567-568

[2001]). Similarly, because claimant's actions could not

constitute the sole proximate cause of his accident, the Court of

Claims did not err in denying defendant's motion for summary

judgment with respect to claimants' Labor Law § 241 (6) cause of

action.

McCarthy, Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court