Luna v. Zoological Soc'y of Buffalo, Inc.

• Decision Date: 28 December 2012
• Citation: 2012 N.Y. Slip Op. 09227,958 N.Y.S.2d 807,101 A.D.3d 1745
• Parties: Joseph LUNA, Plaintiff–Respondent, v. ZOOLOGICAL SOCIETY OF BUFFALO, INC., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1745

958 N.Y.S.2d 807

2012 N.Y. Slip Op. 09227

Joseph LUNA, Plaintiff–Respondent,

v.ZOOLOGICAL SOCIETY OF BUFFALO, INC., Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 28, 2012.

Law Offices of Laurie G. Ogden, Rochester (Gary J. O'Donnell of Counsel), for Defendant–Appellant.

Paul William Beltz, P.C., Buffalo (Debra A. Norton of Counsel), for Plaintiff–Respondent.

PRESENT: CENTRA, J.P., FAHEY, VALENTINO, AND MARTOCHE, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries he sustained while working as a carpenter on a construction project for defendant. Supreme Court properly granted plaintiff's motion for partial summary judgment on liability with respect to the Labor Law § 240(1) claim. Plaintiff sustained his initial burden of establishing that he was injured as the result of a fall from an elevated work surface and that defendant failed to provide a sufficient safety device ( see Ferris v. Benbow Chem. Packaging, Inc., 74 A.D.3d 1831, 1832, 905 N.Y.S.2d 394;see generally Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865). In opposition, defendant failed to raise a triable issue of fact whether plaintiff's “ ‘own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of the accident’ ” ( Mazurett v. Rochester City School Dist., 88 A.D.3d 1304, 1305, 930 N.Y.S.2d 742, quoting Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439). We reject defendant's contention that there is an issue of fact whether plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident. Although defendant submitted evidence that plaintiff was instructed not to work in a particular area and violated those instructions, “the nondelegable duty imposed upon the owner and general contractor under Labor Law § 240(1) is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give [a worker] proper protection” ( Long v. Cellino & Barnes, P.C., 68 A.D.3d 1706, 1707, 892 N.Y.S.2d 692 [internal quotation marks omitted] ), which was not done here. Thus, “[t]he mere failure by plaintiff to follow safety instructions does not render plaintiff a recalcitrant worker” ( Whiting v. Dave Hennig, Inc., 28 A.D.3d 1105, 1106, 815 N.Y.S.2d 382 [internal...