Bras v. Atlas Const. Corp.
| Decision Date | 01 October 1990 |
| Citation | 560 N.Y.S.2d 467,166 A.D.2d 401 |
| Parties | Guilherme BRAS, Plaintiff-Respondent, v. ATLAS CONSTRUCTION CORP., Defendant Second Third-Party Plaintiff-Appellant, et al., Defendant, King Corp., Second Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Stewart H. Friedman, Floral Park (David A. Harrison, of counsel), for defendant second third-party plaintiff-appellant.
Segan, Culhane, Nemerov & Singer, P.C., New York City (Fred J. Hirsch, of counsel), for plaintiff-respondent.
McMahon, Martine & Merritt, New York City (William E. Cahill, of counsel), for second third-party defendant-respondent.
Before THOMPSON, J.P., and LAWRENCE, MILLER and O'BRIEN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendant Atlas Construction Corp., appeals from an order of the Supreme Court, Queens County (Hentel, J.), dated April 5, 1990, which granted the plaintiff summary judgment on the issue of liability pursuant to Labor Law § 240(1).
ORDERED that the order is affirmed, with one bill of costs.
The plaintiff sustained personal injuries when a plank of a scaffold cracked at a point approximately two feet from its end, causing him to fall some 12 to 15 feet to the floor. While there were no other witnesses to the actual fall, the work-site supervisor employed by the appellant general contractor stated at an examination before trial that he found the plaintiff on the floor, with planks near him.
We find that the plaintiff's moving papers adequately set forth evidentiary facts showing a prima facie violation of the statutory duty pursuant to Labor Law § 240(1), by the appellant, which was the proximate cause of the accident (see, Drew v. Correct Mfg. Corp., Hughes-Keenan Div., 149 A.D.2d 893, 895, 540 N.Y.S.2d 575; Alston v. Golub Corp., 129 A.D.2d 916, 917, 514 N.Y.S.2d 553; Hauff v. CLXXXII Via Magna Corp., 118 A.D.2d 485, 486, 499 N.Y.S.2d 958). Where, as here, there is a showing of the collapse of a scaffold without any apparent cause, the burden shifts to the defendant to submit evidentiary facts which would raise a factual issue on liability (see, Drew v. Correct Mfg. Corp., Hughes-Keenan Div., supra; Hauff v. CLXXXII Via Magna Corp., supra ).
In opposition to the plaintiff's motion, it was incumbent upon the appellant to come forward with evidentiary proof in admissible form to establish the existence of a triable issue of fact or to demonstrate an acceptable excuse for its failure...
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