Gambale v 400 Fifth Realty, LLC

Gambale v 400 Fifth Realty, LLC 2012 NY Slip Op 08691 Decided on December 19, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 19, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
DANIEL D. ANGIOLILLO
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2011-08921
(Index No. 18694/09)

[*1]Michael Gambale, et al., respondents,

v

400 Fifth Realty, LLC, et al., appellants.




Malapero & Prisco LLP, New York, N.Y. (Frank J. Lombardo of
counsel), for appellants.
Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of
counsel), for respondents.


DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated August 4, 2011, as granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and denied that branch of their cross motion which was for summary judgment dismissing that cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs are ironworkers who allegedly were injured while working on the 42nd floor during the construction of a building located on Fifth Avenue in Manhattan. The accident occurred when the floor, which then consisted of plywood decking, collapsed underneath them as they were standing on it. The plaintiffs moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and the defendants cross-moved, inter alia, for summary judgment dismissing that cause of action. The Supreme Court granted that branch of the plaintiffs' motion and denied that branch of the defendants' cross motion. The defendants appeal, and we affirm.

The plaintiffs met their prima prima facie burden of establishing that the defendants' violation of Labor Law § 240(1) was a proximate cause of their accident (see Silvia v Bow Tie Partners, LLC, 77 AD3d 1143; Zong Mou Zou v Hai Ming Constr. Corp., 74 AD3d 800; Robertti v Powers Chang, 227 AD2d 542). In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiffs' actions were the sole proximate cause of their accident (see Zong Mou Zou v Hai Ming Constr. Corp., 74 AD3d at 800; Beamon v Agar Truck Sales, Inc., 24 AD3d 481; Birbilis v Rapp, 205 AD2d 569).

Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on their cause of action alleging a violation [*2]of Labor Law § 240(1), and denied that branch of the defendants' cross motion which was for summary judgment dismissing that cause of action.
MASTRO, J.P., ANGIOLILLO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court