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GARY WIENER, APPELLANT, v. JEFRY ROSMARIN, DEFENDANT, LAURI ROSMARIN-PLATTNER, ET AL., RESPONDENTS.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellant made a prima facie showing of his entitlement to summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1) insofar as asserted against the respondents. In opposition, however, the respondents submitted evidence that the scaffold from which the appellant fell performed its function of supporting him and his materials (see, Whalen v. Sciame Constr. Co., 198 A.D.2d 501; Dennis v. Beltrone Constr. Co., 195 A.D.2d 688). Therefore, the issue of whether the scaffold provided proper protection within the meaning of Labor Law § 240(1) is a question of fact for a jury (see, Mejia v. African M. E. Allen Church, 271 A.D.2d 583; Eckhoff v. Consolidated Edison Co. of N.Y., 214 A.D.2d 698). Furthermore, there is an issue of fact as to whether the conduct of the appellant or his co-worker constituted the proximate cause of the accident (see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513; Mejia v. African M. E. Allen Church, supra).

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WIENER v. ROSMARIN
(Apr 2, 2001)