Second Department Denied Summary Judgment Pursuant to Labor Law § 240(1) Where Issues of Fact Remained as to Sole Proximate Cause

In Lorde v Margaret Tietz Nursing & Rehabilitation Ctr., the plaintiff was injured when the inverted bucket that he was standing on tilted, causing him to fall. Plaintiff commenced an action alleging common law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The plaintiff then moved for summary judgment on the issue of liability with respect to his Labor Law § 240(1) claim. The lower court denied plaintiff’s motion and the Second Department affirmed finding that “[l]iability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident”. The Second Department determined that plaintiff’s testimony, namely that he could not recall how many ladders were in the room at the time of his accident and that he did not know whether there were more than six ladders available at the job site, failed to eliminate all triable issues of fact as to whether there were ladders available and whether plaintiff’s decision to stand on the bucket was the sole proximate cause of his injuries.