        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1215
CA 14-00649
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


DOUGLAS F. BERNARD AND BARBARA BERNARD,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

TOWN OF LYSANDER, DEFENDANT-RESPONDENT.


CANNON & VAN ALLEN, LLP, GENESEO (MARK J. VALERIO OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

SMITH SOVIK KENDRICK SUGNET, P.C., SYRACUSE (KAREN J. KROGMAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Donald F. Cerio, Jr., A.J.), entered February 5, 2014. The order
denied plaintiffs’ motion for partial summary judgment on the issue of
liability.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the motion is
granted.

     Memorandum: Douglas F. Bernard (plaintiff) and his wife
commenced this action seeking damages for injuries plaintiff sustained
when he fell from a collapsing scaffold while working at a
construction site owned by defendant. The complaint asserts a single
cause of action for violation of Labor Law § 240 (1). Following
discovery, plaintiffs moved for partial summary judgment on the issue
of liability, contending that defendant failed as a matter of law to
afford plaintiff proper protection under the statute. In opposition
to the motion, defendant argued that there is an issue of fact whether
plaintiff’s alleged negligence in improperly constructing the scaffold
was the sole proximate cause of his injuries. We conclude that
Supreme Court erred in denying plaintiffs’ motion.

     On the day of his accident, plaintiff and a fellow employee were
installing exterior trim boards (Hardie boards) on the side of a newly
constructed sewage treatment pump house. To install the Hardie
boards, plaintiff or his coworker constructed a platform on which to
stand by placing one end of a 14-foot-long aluminum scaffold plank
(pick) into the bucket of a backhoe, and securing the other end of the
pick with two pieces of wood that were nailed into the side of the
building. It is undisputed that, other than the pick, defendant did
not provide any scaffolding or other safety devices for plaintiff to
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                                                         CA 14-00649

use to install the Hardie boards. While plaintiff was standing on the
pick, the end of the pick secured by the wooden braces gave way,
causing plaintiff to fall to the ground and sustain broken ribs,
broken vertebrae and a perforated lung, among other injuries.

     We conclude that “[t]he fact that the scaffold collapsed is
sufficient to establish as a matter of law that the [scaffold] was not
so placed . . . as to give proper protection to plaintiff pursuant to
the statute” (Mazurett v Rochester City Sch. Dist., 88 AD3d 1304, 1305
[internal quotation marks omitted]; see Vasquez v C2 Dev. Corp., 105
AD3d 729, 730; Kirbis v LPCiminelli, Inc., 90 AD3d 1581, 1582).
Contrary to defendant’s contention, there is no issue of fact whether
the safety equipment provided to plaintiff was sufficient to afford
him proper protection under Labor Law § 240 (1). The only safety
device provided to plaintiff at the work site was a 14-foot-long pick.
“There were no harnesses, lanyards, safety lines, or similar safety
devices available for use to prevent [plaintiff’s] fall” (Aburto v
City of New York, 94 AD3d 640, 640). To perform the work of
installing siding on the building, plaintiff therefore had to create
what the court accurately referred to as a “makeshift” scaffold by
placing one end of the pick in the shovel of a backhoe and the other
end between two pieces of wood he or a coworker nailed into the side
of the building. “[T]he onus [was not] on plaintiff to construct an
adequate safety device, using assorted materials on site [that were]
not themselves adequate safety devices but which may [have been] used
to construct a safety device” (Collins v West 13th St. Owners Corp.,
63 AD3d 621, 622).

     We reject defendant’s further contention that there is an issue
of fact whether plaintiff’s alleged negligence in securing the wooden
braces with only two nails or in otherwise improperly erecting the
scaffold was the sole proximate cause of the accident. Because
defendant violated Labor Law § 240 (1) by failing to provide plaintiff
with proper protection, plaintiff’s alleged negligence cannot be
deemed the only cause of the accident (see Blake v Neighborhood Hous.
Servs. of N.Y. City, 1 NY3d 280, 286; Miles v Great Lakes Cheese of
N.Y., Inc., 103 AD3d 1165, 1167). Under the circumstances,
plaintiff’s actions with respect to the manner in which he constructed
the “makeshift” scaffold “ ‘raise, at most, an issue of comparative
negligence, which is not an available defense under section 240 (1)’ ”
(Signs v Crawford, 109 AD3d 1169, 1170; see Stolt v General Foods
Corp., 81 NY2d 918, 920).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
