Moller v City of New York (2007 NY Slip Op 06524)

Moller v City of New York

2007 NY Slip Op 06524 [43 AD3d 371]

August 30, 2007

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, October 3, 2007

Walter Moller et al., Respondents,
v
City of New York et al., Appellants, et al., Defendant. (And Other Actions.)

—[*1] Melito & Adolfsen P.C., New York (Abe M. Rychik of counsel), for appellants.

Gair, Gair, Conason, Steigman & MacKauf, New York (Rhonda E. Kay of counsel), for respondents.

Order, Supreme Court, New York County (Louis B. York, J.), entered December 13, 2006, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for partial summary judgment on liability on their claim under Labor Law § 240 (1), unanimously affirmed, without costs.

Plaintiff worker was in the process of hoisting a two-ton structural piece from an elevated height to a platform. Before the piece could be placed and stabilized on the platform, the hoisting mechanism failed, causing injury to the worker. Under these circumstances, it is evident there was a violation of section 240 (1) (see e.g. Boyle v 42nd St. Dev. Project, Inc., 38 AD3d 404 [2007]). We further note the absence of evidence that the worker's conduct was the sole proximate cause of the accident. Concur—Tom, J.P., Andrias, Nardelli, Williams and Buckley, JJ.