Settled law holds that “mere comparative negligence” is not a defense, and will not reduce the worker’s recovery, when the subject injury arises from a failure to provide “proper protection” as to an elevation risk within the ambit of Labor Law §240. Yang v. City of New York, 207 A.D.3d 791, 794 (2d Dept. 2022); Pimentel v. DE Frgt., 205 A.D.3d 591, 593 (1st Dept. 2022). On the other hand, recovery under the statute will be barred if the worker’s own negligence was the “sole proximate cause” of the subject injury. Barreto v. Metro. Transp. Auth., 25 N.Y.3d 426, 433 (2015).

The issue of whether the worker’s own carelessness or misconduct was “mere comparative negligence” or the “sole proximate cause” of the accident is, in consequence, a frequently recurring issue and the Court of Appeals has enunciated some specific standards and rules that govern in some of the contexts in which the issue has arisen. Three contexts in which we have definitive standards, discussed below, are (1) where the worker’s allegedly negligent choice of the elevating device is claimed to have been the “sole proximate cause” of the subject accident; (2) where the worker’s failure to use an allegedly available safety device is claimed to have been the “sole proximate cause” of his or her accident; and (3) where the worker deliberately chooses not to use any elevating device at all, even though one was “readily available,” and thereby sustains injury.

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