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

1051
CA 10-02273
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


JUAN MAZURETT AND THERESA MAZURETT,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ROCHESTER CITY SCHOOL DISTRICT,
DEFENDANT-APPELLANT.


HURWITZ & FINE, P.C., BUFFALO (DAVID R. ADAMS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

VALERIO & KUFTA, P.C., ROCHESTER (A. VINCENT BUZARD OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (William
P. Polito, J.), entered August 19, 2010 in a personal injury action.
The order, insofar as appealed from, granted the motion of plaintiffs
for partial summary judgment on liability pursuant to Labor Law § 240
(1) and denied in part the cross motion of defendant for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by Juan
Mazurett (plaintiff) when he fell from a collapsing scaffold at a
construction site on property owned by defendant. The accident
occurred while plaintiff was attempting to climb the scaffold, which
had been provided to him by his employer, the general contractor at
the construction site. Defendant contends that Supreme Court erred in
granting plaintiffs’ motion seeking partial summary judgment on
liability with respect to the Labor Law § 240 (1) claim and erred in
denying that part of defendant’s cross motion seeking summary judgment
dismissing the Labor Law § 240 (1) and § 241 (6) claims. We reject
that contention.

     Plaintiffs met their initial burden of establishing a prima facie
violation of Labor Law § 240 (1). The 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 (Dean v City of Utica, 75 AD3d
1130, 1131; see Tapia v Mario Genovesi & Sons, Inc., 72 AD3d 800, 801;
see also Cantineri v Carrere, 60 AD3d 1331). In opposition to the
                                 -2-                          1051
                                                         CA 10-02273

motion, 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 his accident” (Cahill v
Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40). We reject
defendant’s contention that plaintiff was a recalcitrant worker whose
own actions were the sole proximate cause of the accident. Although
defendant submitted evidence that plaintiff was instructed to use a
more stable scaffold and to use a ladder to ascend the scaffold,
defendant failed to submit any evidence that plaintiff refused to use
a particular scaffold or ladder that was provided to him. “The mere
presence of [other safety devices] somewhere at the work[]site” does
not satisfy defendant’s duty to provide appropriate safety devices
(Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524, rearg
denied 65 NY2d 1054; see Williams v City of Niagara Falls, 43 AD3d
1426; Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106). Even
assuming, arguendo, that plaintiff was negligent, we conclude that his
own conduct cannot be deemed the sole proximate cause of the accident
inasmuch as plaintiffs established that a statutory violation was a
proximate cause of plaintiff’s injuries (see Blake v Neighborhood
Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Calderon v Walgreen Co.,
72 AD3d 1532, appeal dismissed 15 NY3d 900).




Entered:   October 7, 2011                     Patricia L. Morgan
                                               Clerk of the Court
