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

350
CA 13-01663
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


CARLETTA SIMS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF ROCHESTER, DEFENDANT-RESPONDENT.


PARISI & BELLAVIA, LLP, ROCHESTER (TIMOTHY C. BELLAVIA OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, ROCHESTER (SCOTT P. ROGOFF OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered July 2, 2013. The order denied the motion
of plaintiff for partial summary judgment.

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

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries she allegedly sustained
while performing asbestos abatement work during a construction project
at Midtown Plaza, which is owned by defendant. According to
plaintiff, she was scraping asbestos from the ceiling while standing
on a free-standing scaffold when the scaffold shifted and she fell to
the ground, thereby sustaining injuries. We conclude that Supreme
Court properly denied plaintiff’s motion for partial summary judgment
on the issue of liability with respect to the Labor Law § 240 (1)
claim.

     “To be entitled to a judgment on liability for a violation of
section 240 (1) of the Labor Law, [a] plaintiff [is] required to
prove, as a matter of law, not only a violation of the section, but
also that the violation was a proximate cause of his [or her]
injuries” (Rossi v Main-South Hotel Assoc., 168 AD2d 964, 964; see
Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287), and
it is well settled that “an accident alone does not establish a
[section] 240 (1) violation or causation” (Blake, 1 NY3d at 289).
Here, we conclude that plaintiff failed to meet her initial burden on
the motion inasmuch as “inconsistent versions of how the accident
occurred raise a question of fact as to the credibility of the
plaintiff, and are insufficient to prove, as a matter of law, that the
defendant[’s alleged] failure to provide the plaintiff with proper
protection proximately caused [her] injuries” (Nelson v Ciba-Geigy,
                                 -2-                          350
                                                        CA 13-01663

268 AD2d 570, 572; see Reborchick v Broadway Mall Props., Inc., 10
AD3d 713, 714; Alava v City of New York, 246 AD2d 614, 615). Although
plaintiff claimed in her deposition and in an affidavit that she was
working on a scaffold when it shifted, thereby causing her to fall to
the ground, she also submitted the affidavits of two coworkers who
averred that plaintiff was not on the scaffold when the accident
occurred. According to the coworkers, both of whom witnessed the
accident, plaintiff was working on the ground level cleaning debris
from the floor when the unoccupied scaffold tipped over and fell while
one of the coworkers was attempting to move it to another location.
The coworker who was moving the scaffold did not see the scaffold fall
on plaintiff or otherwise come into contact with her, although
plaintiff later told him that the scaffold had hit her arm and hand.
The other coworker averred that he had observed one of plaintiff’s
coworkers push her out of the way of the falling scaffold and that
plaintiff then fell to the ground. He did not see the scaffold fall on
or otherwise strike plaintiff. Plaintiff’s failure to eliminate all
questions of fact mandates the denial of her motion, regardless of the
sufficiency of defendant’s opposing papers (see generally Alvarez v
Prospect Hosp., 68 NY2d 320, 324).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
