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

1338
CA 13-01028
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


NED W. GOULD, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

E.E. AUSTIN & SON, INC. AND CATTARAUGUS-LITTLE
VALLEY CENTRAL SCHOOL DISTRICT,
DEFENDANTS-RESPONDENTS.


MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LIPPMAN O’CONNOR, BUFFALO (THOMAS D. SEAMAN OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Cattaraugus County
(Michael L. Nenno, A.J.), entered January 7, 2013. The order, inter
alia, denied the motion of plaintiff for partial summary judgment on
the issue of liability with respect to the Labor Law § 240 (1) claim.

     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 he allegedly sustained
while performing masonry work at the Cattaraugus-Little Valley Central
School District High School. Defendant Cattaraugus-Little Valley
Central School District hired defendant E.E. Austin & Son, Inc. as the
general contractor on the project, and that defendant hired Casler
Masonry, which employed plaintiff, to perform certain masonry work on
the project. According to plaintiff, he was working on a ladder
leading up to scaffolding erected in the auditorium when an unsecured
tub of mortar that was located in an elevated position on a forklift
fell and struck him on the head, shoulder, back and leg, thereby
injuring him. 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.

     It is well settled that, “[t]o 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, citing Duda v Rouse Constr. Corp., 32 NY2d 405, 410;
                                 -2-                         1338
                                                        CA 13-01028

Danielewicz v Klewin Bldg. Co., Inc., 39 AD3d 1194, 1194-1195), and it
is further well settled that “an accident alone does not establish a
[section] 240 (1) violation or causation” (Blake, 1 NY3d at 289). We
note at the outset that the court properly determined that plaintiff
established a violation of section 240 (1) (see Williams v Town of
Pittstown, 100 AD3d 1250, 1251; Minchala v Port Auth. of N.Y. & N.J.,
67 AD3d 978, 978). We conclude that, by submitting the affidavit of a
coworker with personal knowledge of the facts (see Vetrano v J.
Kokolakis Contr., Inc., 100 AD3d 984, 986), and “relying on [his own]
deposition testimony, [plaintiff] established, prima facie, that
[section] 240 (1) was violated and that the violation was a proximate
cause of [his] injuries” (Lopez-Dones v 601 W. Assoc., LLC, 98 AD3d
476, 479; see generally Kirbis v LPCiminelli, Inc., 90 AD3d 1581,
1582).

     We further conclude, however, that the court properly denied
plaintiff’s motion because defendants raised a triable issue of fact
whether plaintiff’s alleged injuries were caused by the falling mortar
tub (see Jones v West 56th St. Assoc., 33 AD3d 551, 551-552; see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Defendants
submitted evidence establishing that plaintiff told his supervisor
immediately after the incident that he was not injured, continued to
work for the remainder of the regular workday, worked full days over
the following week, and never complained of any alleged injuries
associated with the mortar tub falling on him. Indeed, the evidence
in the record, including plaintiff’s certified medical records and an
independent medical examination (IME) report, which was prepared by a
physician who examined plaintiff and was submitted by defendants in
opposition to the motion, demonstrates that plaintiff sought medical
treatment and stopped working only after suffering an abdominal injury
while lifting buckets of mortar one week after the mortar tub struck
him. Even then, plaintiff did not mention to any medical professional
that a mortar tub had struck him, and did not report any injuries
attributable thereto, until 2½ months after the incident (see Jones,
33 AD3d at 551-552). Moreover, the physician who conducted the IME of
plaintiff concluded, based on his examination of plaintiff, that the
injuries of which plaintiff complained were degenerative in nature,
and that plaintiff did not sustain any injuries when the mortar tub
struck him.




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
