In this action, plaintiff George Nunez ( Nunez) an employee of the New York City Transit Authority (NYCTA) sues the City of New York for injuries sustained when he was injured on August 13, 2006 while working on a project to remove and replace subway tracks at an elevated station on the "J" line in Brooklyn, NY. Nunez was a NYCTA track worker when he fell approximately thirty (30) feet from the elevated structure and landed on the street below when the walkway that he was standing on collapsed.

Plaintiff now moves for summary judgment pursuant to New York State Labor Law § 240 (1)" . The City opposes claiming that there are triable issues of fact as to whether Nunez's own actions were the "sole proximate cause of the accident".

On a motion for summary judgment, the movant has the burden of establishing by the preponderance of the evidence that there are no material issues of fact, if he does, the burden shifts to the opposition to raise triable issues (Alverez v Prospect Hospital, 68 NY2d 320 [1986]).

Plaintiff relies on extensive deposition testimony to meet its burden.

Algrnon Lawrence, the Superintendent of Track Construction who was at the work site at the time of the accident testified as follows:

Q.Okay. So despite all these questions that Counsel

asked you about what would have, should have, could

have, the fact is at the time this accident occurred, you

were at the site, and since there was no cutting activities

going on, Mr. Nunez did not need to be tied off, correct, sir ?

A.Correct. [*2]

Alvaro DeJesus, one of the plaintiff's co-workers who witnessed the accident testified as follows:

Q.You say you saw Mr. Nunez fall?

A.Yes.

Q.Where was he when he fell?

A.At the end of the platform, the front portion,

the free side, away from the third rail to where

you can actually go into the street, not in the

inside. It was the outer part of the track.

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Q.Did you see what Mr. Nunez was doing right

before he fell?

A.Before, I had mentioned that to Saint John I had

told George don't have to cut the bolts.

I don't understand why he's trying to rush the job.

George was setting up the rail dogs, have two days

cutting, only two days cutting. He was setting up the

rail dogs for himself and for myself to cut out the

panels. The chop was there, right on the walkway,

and then he went over by the chop saw and everything

just gave way.

Q.So, he didn't have the chop saw in his hand when

he fell, correct?

A.No.

Clarence Robinson St. John, Maintenance Level 1. Supervisor who was Nunez's immediate supervisor testified as follows:

Q.Did you actually see Mr. Nunez fall; yes or no?

A.I saw him just before he was completely over. In other words ——-

Q.Were you looking in his direction when he fell?

A.No.

Q.When was the last time you saw him before he fell? [*3]

A.Well, I was standing right next to him.

Q.How far away?

A.I was closer than we are right here

Q.So about a foot or two away from him?.

A.Probably not even a foot away from him. I was

standing that close to him.

Q.What was he doing at that point?

A.He was looking at me because I told him that I didn't

want him to do something.

Q.At the time that you saw him, are we talking about

within a second of the time he fell, that you saw him;

is that correct?

A.No.

Q.How many seconds before he fell?

A.I would say more like minutes, between the time I had

finished speaking to him, and turned , and walked away.

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Q.When you spoke to him was he hooked up?

A.No.

Q.Did you tell him at the time that he needed to be hooked up?

A.No.

Q.And the reason he didn't need to be hooked up, he was

not cutting out any panel at the time; correct?

A.Correct.

Q.If it was required for him to be hooked up, you would

have told him that; correct?

A.Yes.

Q.Because you were right there?

A.Yes.

Finally, plaintiff testified as follows:

Q.Describe for me in your own words what happened

when you fell through.

A.I fell. I fell. I hit the ground and woke up two months

after. That's it.

Q.Were you carrying anything in your hands at the time? [*4]

Did you have a chain saw in your hands?

A.No, no.

Q.Did you have any kind of tools in your hands?

A.No.

*******************

Q.At the time the accident happened, your safety line was

not connected to a slider, correct?

A.Correct, yes.

Q.MR. BIONDI: Why wasn't it connected ?

Q.Why?

A.I wasn't doing no work at the time. I wasn't doing

work that required me to be hooked up.

Q.Was it your understanding that when you were not

actively cutting that your line did not have to be

connected to the slide?

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A.Yes, if we were not cutting we unhook and we

walk around up there because you can't stay hooked

up there and walk around because that's limited

movement there.

Q.At any point before the accident happened, did any

of your supervisors instruct you to connect your safety

line to the slide?

A.No. Say that again.

Q.At any time prior to the accident, did any of your

supervisors instruct you to connect your safety line

to the slide?

A.No.

Q.Had you had your safety line connected to the slide

at any time before, earlier that day before the accident

happened?

A.Yes, yes. [*5]

Q.And at what point did you disconnect your line from

the slide?

A.After we do our cutting, after your cutting is done we

unhook, that's it.

The Court finds that plaintiff has established a prima facie entitlement to summary judgment. The deposition testimony establishes that plaintiff was at the site, working under the direction and guidance of his supervisors and following their direction when the wood platform he was working on collapsed.

The burden now shifts to the City. In response the City relies on the deposition testimony of Mr. St. John. The City attempts to cobble together various parts of Saint John's testimony to create a triable issue of fact as to whether plaintiff himself cut the bolts which caused the accident. St. John testified as follows:

Q.Approximately how long before Mr. Nunez fell through

there, were you standing on those two planks?

A.I was standing there.

Q.Approximately how long before would you say?

A.Just minutes before.

Q.After you were standing on those planks, is that when

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you walked away to call the supervisor to find out where

the handrails would be cut?

A.Yes.

Q.During that time while you were on the phone, Mr. Nunez

was back in the area behind you; correct?

A.Yes.

Q.While you were on the phone, you heard the sound of

the chop saw going?

A.I heard the sound of a machine going.

Q.And you concluded from knowing that sound, that would be

the sound of the chop saw; correct?

A.That was the only thing I could think of.

However, this testimony is belied by St. John's own testimony as follows:

Q.As you sit here right now, did you know if Mr. Nunez [*6]

used that chop saw to cut the bolt in the area where

the accident occurred?

A.No.

Q.Do you know, as you sit here right now, do you know who,

if anyone cut the bolts in the area where the accident occurred?

A.No.

Labor Law § 240(1) provides in pertinent part that:

" All contractors and owners and their agents, except

owners of one family and two-family dwellings who

contract for but do not direct or control the work, in the

erection, demolition, repairing, [or] altering... of a building

or structure shall furnish or erect, or cause to be furnished

or erected for the performance of such labor, scaffolding,

hoists, stays, ladders, slings, hangers, blocks, pulleys, braces,

irons, ropes, and other devices which shall be constructed,

places and operated as to give proper protection to a person

so employed".

Labor Law §240(1) was enacted to " prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly

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flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the

responsibility for safety practices and safety devices on owners, general contractors, and their agents

who " are best situated to bear that responsibility" (Ross, 81 NY at 500; see also Zimmer v Chemung

County Perf. Arts, 65 NY2d 513, 520 [1985]). " The duty imposed by Labor Law § 240(1)" is nondelegable and... an owner or contractor who breaches that duty may beheld liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross, 81 NY at 500). Furthermore, the statute is to be construed as liberally as possible in order to accomplish its protective goals ( Martinez v City of New York, 93 NY2d 322, 326[1999]). However, "[n]ot every worker who falls at a construction site.... gives rise to the extraordinary protection of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267 [2001]). Rather, only those accidents proximately caused by a Labor Law § 240 (1) violation will result in the imposition of liability under the statute (Blake v Neighborhood Hous. Services [*7]of New York City, 1 NY3d 280, [2003]).

Here, plaintiffs have submitted evidence in the form of plaintiff's deposition testimony and the deposition of other persons who were at the accident site which indicate that he was injured during the course of a construction project when two walkway frame bolts at the base of the walkway he was standing upon were cut, which , in turn, caused the entire walkway to collapse . It is well-settled that the collapse of a scaffold or walkway constitutes prima facie evidence of a Labor Law § 240 (1) violation (Coque v Wildflower Estates Dev., Inc., 31 AD3d 484,[ 2d Dept 2006], Hulse v Summerlin, LLC.,17 AD3d 317, [ 2d Dept 2005], Saeed v NY/Enterprise City Home Hous, Dev. Fund Corp., 303 AD2d 484, [2d Dept 2003]). Consequently, the burden shifts to the defendant to submit admissible evidence which raises a triable issue of fact regarding its liability under the statue.

The City has failed to meet it's burden. The City merely attempts to raise issues of fact by use of speculation and surmise. Moreover, where, as here, the workman was following his supervisors instructions not to hook up, the worker's actions can not constitute the sole proximate cause of the

accident (Pichardo v Aurora Contrs., Inc., 29 AD3d 879, [2d Dept 2006], Valensisi v Greens at Half Hollow, LLC., 33 AD3d 693, [ 2d Dept 2006].

Accordingly, the plaintiffs' motion for summary judgment is granted on liability. Plaintiffs are directed to file a note of issue within thirty (30) days of this order for a trial on the issue of damages.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

June 16, 2008

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