Jorge Avila v Ashton Management Company

Avila v Ashton Mgt. Co. 2005 NY Slip Op 10031 [24 AD3d 273] December 22, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Jorge Avila, Respondent,
v
Ashton Management Company et al., Defendants, and Yates Restoration Corp., Appellant. (And a Third-Party Action.)

—[*1]

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about March 17, 2005, which, to the extent appealed from as limited by the brief, denied the motion of defendant Yates Restoration Corp. for summary judgment dismissing plaintiff's Labor Law § 240 (1) and § 241 (6) claims, unanimously affirmed, without costs.

Summary judgment dismissing plaintiff's Labor Law § 240 (1) claim was properly denied since the evidence showing that the scaffold utilized by plaintiff tipped when plaintiff and his coworker, "very near" to each other, exchanged places causing both of them to fall to the ground, did not permit the court to conclude, as a matter of law, that plaintiff's act of unhooking his safety belt was the sole proximate cause of his harm (see Fajardo v Trans World Equities Co., 286 AD2d 271 [2001]).

Inasmuch as plaintiff alleged in the bill of particulars that Yates violated Industrial Code (12 NYCRR) § 23-5.8 and there was no evidence presented as to whether Yates provided tie-ins in accordance with the Code's requirement, the court properly denied Yates' motion for summary judgment dismissing the Labor Law § 241 (6) claim. [*2]

We have considered appellant's remaining contentions and find them unavailing. Concur—Buckley, P.J., Mazzarelli, Andrias, Saxe and Sullivan, JJ.