Paz v. City of N.Y.

• Decision Date: 14 June 2011
• Parties: Sofio Garcia PAZ, Plaintiff–Appellant,v.CITY OF NEW YORK, et al., Defendants,Riverbay Corporation, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 519

925 N.Y.S.2d 453

2011 N.Y. Slip Op. 05136

Sofio Garcia PAZ, Plaintiff–Appellant,

v.CITY OF NEW YORK, et al., Defendants,Riverbay Corporation, et al., Defendants–Respondents.

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

June 14, 2011.

Sacco & Fillas, LLP, Whitestone (Luigi Brandimarte of counsel), for appellant.Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Megan E. Bronk of counsel), for respondents.SAXE, J.P., ACOSTA, DeGRASSE, ABDUS–SALAAM, MANZANET–DANIELS, JJ.

Judgment, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered September 7, 2010, granting defendants-respondents' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 1, 2010, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

It is well settled that while Labor Law § 240[1] imposes nondelegable, absolute liability upon an owner and/or contractor for any breach thereof which was proximately responsible for the plaintiff's injury ( see Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 50, 781 N.Y.S.2d 477, 814 N.E.2d 784 [2004] ), liability does not attach where a plaintiff's actions are the sole proximate cause of his injuries ( see Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554, 814 N.Y.S.2d 589, 847 N.E.2d 1162 [2006]; Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ). Specifically, if adequate safety devices are provided and the worker either chooses for no good reason not to use them, or misuses them, then liability under § 240[1] does not attach ( see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ). Here, the record established that plaintiff knew that he was expected to use a ladder to climb onto the elevated scaffold, untie it, and lower it to the ground, but chose for no good reason not to do so. The record further demonstrates that the scaffold was tied to an elevated concrete ledge for the purpose of preventing pedestrians from gaining access to it overnight, not to support the weight of a worker balancing between the ledge and the scaffold as he put on his safety harness. Hence, the court correctly denied plaintiff's motion for summary judgment as to this cause of action and granted defendants-respondents' cross motion for summary judgment dismissal.

The court correctly dismissed plaintiff's cause of action under Labor Law § 200 on the ground that defendants had no supervisory control over this...