Following a trial culminating in a jury verdict on November 10, 2011, the plaintiff moves pursuant to CPLR Rule 4404 for an order setting aside the verdict and directing entry of a judgment in its favor upon its Labor Law §240(1) cause of action and, alternatively, for a new trial as to said cause of action. The defendants oppose the motion.

This action was tried before a jury on November 3, 4, 9 and 10, 2011. The action arose from plaintiff's fall from the roof of defendants' premises on September 19, 2006. On the date of his fall plaintiff was working on replacing the roof. As he began to attempt to get on his ladder to descend, plaintiff (according to his account at trial) stepped on a soft or rotted patch of roof which gave away and caught his left heel resulting in his loss of balance and fall to the ground.

The jury determined, in its answer to Question No.3 of the verdict sheet, that defendants violated Labor Law §240(1) by failing to provide adequate safety devices on September 19, 2006. As owners (to whom the one or two family home exception under §240(1) did not apply - the jury also found the premises to be a three family dwelling) the defendants had a nondelegable duty to provide safety devices (see, Lajqi v. New York City Transit Auth., 23 AD3d 159 [1st Dept., 2005] citing Vergara v. SS 133 W. 21 LLC, 21 AD3d 279 [1st Dept., 2005]). It is settled that this statute, often referred to as the "Scaffold Law", is to be liberally construed to effectuate its purpose (see, Sanatass v. Consolidated Investing Co., Inc., 10 NY3d 333 [2008]; Felker v. Corning, Inc., 90 NY2d 219 [1997]). As noted by the Court in Kyle v. City of New York, 268 AD2d 192 [1st Dept., 2000] lv. app. den. 97 NY2d 608:

The Court of Appeals has made it clear that the purpose of the statute is to protect workers by placing the " ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' (1969 NY Legis Ann, at 407), instead of on workers, who are scarcely in a position to protect themselves from accident'" [citations omitted].

Thus, Labor Law §240(1) is to be construed as liberally necessary to accomplish the purpose for which it was framed [citations omitted], and it places absolute liability upon owners, contractors, and their agents for any breach of the statutory duty that is the proximate cause of plaintiff's injuries [citations omitted]...

...we reject defendant's argument that the negligence of plaintiff and his co-workers was the sole proximate cause of the accident. It is settled that liability imposed under Labor Law §240(1) is absolute, rendering any alleged negligence on the part of the plaintiff irrelevant [citations omitted].

The plaintiff contends, inter alia, that the jury's finding (upon Question #4) that such violation of §240(1) was not a "substantial factor" (proximate cause) of the plaintiff's fall and injury is inconsistent with its finding in plaintiff's favor on Question #3; that is, that the jury's [*2]finding against plaintiff on the question of whether defendants §240(1) violation was a substantial factor in the accident is irrational and unsupported by sufficient evidence and that no fair interpretation of the evidence could support the verdict. Specifically, the plaintiff contends that the finding of liability on Question #3 is "inextricably interwoven" (see, McConnell v. Santana, 77 AD3d 635 [2nd Dept., 2010]) (see supporting affirmation of Thomas Spellman at ¶s 2 and 6) with causation such that it is logically impossible for the jury to have found against plaintiff on causation, that is, on the "substantial factor" question (#4). Defendants contend in substance that the jury's finding that the §240(1) violation was not a substantial factor (proximate cause) in plaintiff's accident is rationally and logically inferrable from the evidence and that the jury's verdict should stand.

Here, the Court concludes that the jury's finding of a violation of §240(1) is inextricably intertwined with the question of causation reflected herein in verdict sheet Question #4, the "substantial factor" question, such that the answer in the affirmative as to the existence of a §240(1) violation (Question #3) necessarily entailed such violation being a substantial factor (if not the only factor) in the accident (see, Lajqi v. New York City Transit Auth., 23 AD3d 159 [1st Dept., 2005]; Keena v. Gucci Shops. 300 AD2d 82 [1st Dept., 2002]; Castillo v. 62-25 30th Ave. Realty LLC, 47 AD3d 865 [2nd Dept., 2008] ; Mata v. Chera & Sons, 304 AD2d 420 [1st Dept., 2003]; see also, Boice v. Jegarmont Realty Corp., 204 AD2d 674 [2nd Dept., 1994]; cf., Deluca v. Bensonhurst Grocery, 303 AD2d 541 [2nd Dept., 2003]). "A directed verdict [judgment notwithstanding the verdict pursuant to CPLR §4404] is appropriat[e]. . .[where]. . . the only inference to be drawn from the evidence is that a failure to provide appropriate protective devices is the proximate cause of the plaintiff's injuries" (Cammon v. City of New York, 21 AD3d 196 [1st Dept., 2005] (citing, Weber v. 1111 Park Ave. Realty Corp., 253 AD2d 376 [1st Dept., 1998]), cited subsequently by the Appellate Division, Second Department in Mulhern v. Manhasset Bay Yacht Club, 22 AD3d 470 [2nd Dept., 2005]). Stated differently, the defendant owners' failure to provide any safety device whatsoever in conjunction with the instant roof replacement necessarily must be viewed as a factor in plaintiff falling from a height of 10 feet as he did (see, Charles v. Eisenberg, 250 AD2d 801 [2nd Dept., 1998]; Curley v. Gateway Communications, 250 AD2d 888 [3rd Dept., 1998], cited by the Appellate Division, Second Department most recently in Ford v. HRH Constr. Corp., 41 AD3d 639 [2nd Dept., 2007]). The only inference to be drawn from the evidence at trial is that the failure to provide adequate safety devices is a proximate cause of plaintiff's accident and injury (see, Collins v. West 13th St. Owners Corp., 63 AD3d 621 [1st Dept., 2009]). Here, as in Boice v. Jegarmont Realty Corp., 204 AD2d 674 [2nd Dept., 1994], it necessarily follows from the finding of failure to provide "adequate devices" (in Boice it was failure to provide "proper protection") that such failure was a substantial factor in plaintiff's accident and injury.

Accordingly, the branch of the motion which is to set aside the verdict as a matter of law is granted, the jury verdict upon the §240(1) claim is vacated and the plaintiff is awarded judgment upon his Labor Law §240(1) claim (see, Charles v. Eisenberg, 250 AD2d 801 [2nd Dept., 1998]; Dedes v. Cambria, 258 AD2d 495 [2nd Dept., 1999]; Cammon v. City of New York, 21 AD3d 196 [1st Dept., 2005]; Castillo v. 62-25 30th Ave. Realty LLC, 47 AD3d 865 [2nd Dept., 2008]; see also, Kindlon v. Schoharie Cent. School Dist., 66 AD3d 1200 [3rd Dept., 2009]; see also, Striegel v. Hillcrest Heights Development Corporation, 100 NY2d 974 [2003]; Velasco v. Green-Wood [*3]Cemetery, 8 AD3d 88 [1st Dept., 2004] cited subsequently by the Appellate Division, Second Department in Boe v. Gammarati, Jr., 26 AD3d 351 [2nd Dept., 2006]); the alternative branch of plaintiff's motion which is for a new trial is denied as academic.

The matter shall proceed to a trial on damages (see, Castillo v. 62-25 30th Ave. Realty LLC, 47 AD3d 865 [2nd Dept., 2008]).

Settle judgment (see, 22 NYCRR §202.48).

So ordered.

Dated:April 12, 2012

HON. WILLIAM B. REBOLINI, J.S.C.