In a 3-2 decision The New York Appellate Division, 3d Department, in GROVE v. CORNELL UNIVERSITY et al., 75 A.D.3d 718; 904 N.Y.S.2d 559; 2010, denied plaintiff’s motion for summary judgment on his 2401(1) claim while granting defendants’ cross motion dismissing the claim holding that plaintiff’s own negligent conduct was, as a matter of law, the sole proximate cause of his injuries. The facts as set forth by the majority were;
“Defendant Cornell University hired defendant Skanska USA Building, Inc. as the general contractor to construct a building on its campus. Skanska subcontracted the window work to Clayton B. Obersheimer, Inc., which employed plaintiff as a glazier. Plaintiff and a coworker, William Sobel, were performing work installing rubber membranes and metal flashing on the second story windows of the building. To reach the windows, plaintiff and Sobel utilized a mechanical telescoping boom lift, as they had done previously. Attached to the boom lift was a metal basket in which plaintiff, Sobel, their tools and materials were situated. Three of the four sides of the basket were enclosed by permanent metal rails. The fourth side was enclosed by a metal gate that opened into the basket to allow for ingress and egress of the workers. The gate was designed with a spring-loaded hinge so as to automatically swing the gate to a closed position when not in use. Plaintiff and Sobel were also provided with safety harnesses and lanyards that were to be attached to the basket to prevent them from falling out of the basket while it was in the raised position. Following a work break and the retrieval of additional materials, plaintiff and Sobel reentered the lift basket and plaintiff began operating the lift, raising it to the second floor. Sobel noticed that plaintiff had not attached the lanyard on his harness to the basket and reminded him to do so. Sobel then began work on a window and, within moments, turned around and saw that plaintiff was gone and the gate was in the open position. Plaintiff fell at least 30 feet, landed on a narrow slab of concrete below and suffered significant injuries”
The majority found that the fact that the spring-loaded hinge was not operating properly did not render the gate defective and that if plaintiff had either attached his lanyard as required or closed and latched the gate manually, the provided safety devices would have prevented him from falling out of the basket. The dissent argued based on BLAKE and DUDA, that once a violation of 240(1) is shown a plaintiff’s conduct can’t be held as a matter of law to be the sole proximate cause of his accident, stating;
“Since we believe that the record contains factual issues regarding the Labor Law § 240 (1) cause of action, we respectfully dissent. The proof is viewed at this procedural point in the light most favorable to the party opposing summary judgment (see Kropp v Corning, Inc., 69 AD3d 1211, 1212, 893 N.Y.S.2d 371 ). Plaintiff was working at a height exceeding 30 feet in a basket affixed to a boom lift. It is undisputed that the gate on the basket was not functioning properly and did not close as designed. Plaintiff testified at his deposition that he was familiar with the self-closing safety feature of the gate having used baskets so equipped previously, and that he was unaware of the gate’s defective condition before his accident. Plaintiff was located immediately adjacent to the broken gate and, while working, he fell out of that gate. A jury could determine that this safety device was defective, plaintiff was not aware of the defect and he fell through the opening created by the defect.
Plaintiff was also supplied with a harness and lanyard that he conceded was either not attached or improperly attached at the time he fell. Neglecting to use an available safety device can result in dismissal when a defendant proves that a worker’s “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of [the worker’s] accident” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40, 823 N.E.2d 439, 790 N.Y.S.2d 74  [emphasis added]). Indeed, a “defendant may be granted summary judgment if the record establishes conclusively that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by [the] plaintiff’s conduct” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289, 803 N.E.2d 757, 771 N.Y.S.2d 484 n 8  [emphasis added]). A plaintiff, however, can defeat summary judgment by showing that a “‘violation of section 240 (1) was a contributing cause of his [or her] fall'” (id. quoting Duda v Rouse Constr. Corp., 32 NY2d 405, 410, 298 N.E.2d 667, 345 N.Y.S.2d 524 ).
Here, there is sufficient evidence in the record from which a jury could find that the failure to provide an adequate safety device, to wit, a basket with a properly operating, self-closing gate, in violation of Labor Law § 240 (1), was a contributing cause to plaintiff’s fall. Moreover, defendants have not shown conclusively that the defective gate on the basket was not a proximate cause of this accident, nor have defendants established that plaintiff’s conduct was the sole proximate cause of the accident (cf. Torres v Monroe Coll., 12 AD3d 261, 262, 785 N.Y.S.2d 57 ). A jury should make those determinations (see Cammon v City of New York, 21 AD3d 196, 200, 799 N.Y.S.2d 455 ). While plaintiff was properly denied summary judgment on this record (see Tronolone v Praxair, Inc., 22 AD3d 1031, 1033, 804 N.Y.S.2d 520 ), we are not persuaded that defendants established that they were entitled to summary dismissal. Accordingly, we would modify Supreme Court’s order by reversing so much thereof as granted defendants’ cross motion for summary judgment dismissing plaintiff’s Labor Law § 240 (1) cause of action.”
The Court of Appeals, obviously adopting the dissents opinion, in a three paragraph Memorandum decision held;
“Triable issues of fact exist as to whether defendants failed to provide an adequate safety device to plaintiff in violation of Labor Law § 240 (1) or whether plaintiff’s conduct was the sole proximate cause of his injuries.” 2011 NY Slip Op 7258, October 18, 2011.