Klapa v. O & Y Liberty Plaza Co.

• Decision Date: 31 August 1995
• Citation: 218 A.D.2d 635,631 N.Y.S.2d 21
• Parties: Janusz KLAPA, et al., Plaintiffs-Appellants, v. O & Y LIBERTY PLAZA COMPANY, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 21

631 N.Y.S.2d 21

218 A.D.2d 635

Janusz KLAPA, et al., Plaintiffs-Appellants, v. O & Y LIBERTY PLAZA COMPANY, et al., Defendants-Respondents [And a Third Party Action]

Supreme Court, Appellate Division First Department.

Aug. 31, 1995.

D. Percerman and N. Matz, for plaintiffs-appellants.

H.D. Nelkin, for defendants-respondents.

Before ROSENBERGER, J.P., and KUPFERMAN, ASCH, NARDELLI and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Huff, J.), entered July 7, 1994, which denied plaintiffs' motion for partial summary judgment, unanimously reversed, on the law, and the motion granted as to liability, with costs and disbursements payable to plaintiffs. Appeal from order, same court and Justice, entered November 9, 1994, which denied plaintiffs' motion to reargue and renew, unanimously dismissed as academic, without costs.

Plaintiff Janusz Klapa was employed by former third-party defendant United National Environmental Services Co., Inc., which had contracted with defendants to remove asbestos from one of their buildings. Plaintiff was injured when he fell from a scaffold that did not contain any guardrails while he was engaged in such asbestos removal.

The IAS court found that plaintiff had made a prima facie case that Labor Law § 240(1) had been violated and that any possible contributory negligence on his part was of no consequence since Labor Law § 240(1) imposes an absolute duty on the owner and contractor. However, the court denied plaintiff's motion for summary judgment as to liability, finding that plaintiff had failed to show that the lack of guardrails was the proximate cause of the accident.

As properly found by the IAS court, no evidence was presented to dispute plaintiff's contention that the scaffold did not have guardrails and that the absence of guardrails or other protective devices on the scaffold was a failure to give "proper protection" within the meaning of Labor Law § 240(1). The Court of Appeals has held: "Notwithstanding that section 240(2) specifically requires guardrails only where the scaffold is more than 20 feet high, the general standard of section 240(1), as correctly applied by the Appellate Division, requires that scaffolding be so constructed and erected as 'to give proper protection' to the worker, without regard to height." (Bland v. Manocherian, 66 N.Y.2d 452, 461, 497 N.Y.S.2d 880, 488 N.E.2d 810 [emphasis added]. The IAS court correctly found, therefore, that plaintiff established a prima facie violation of Labor Law § 240(1).

However, the court erred in concluding that plaintiff failed to demonstrate that the violation was the proximate cause of his accident. "To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury * * *. Plaintiff need...