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It is clear by virtue of a 2010 Court of Appeals’ ruling that a claim premised upon an alleged violation of §240(1) of the Labor Law can be barred, in precisely defined circumstances, if the plaintiff-worker’s failure to utilize a “readily available” safety device or elevating device was the “sole proximate cause” of his or her accident. Gallagher v. New York Post, 14 N.Y.3d 83 (2010). But what if there was no “readily available” safety or elevating device and the defendants instead blame the worker for his or her failure to construct such a device from materials that were “readily available” at the site? Can the worker’s failure to properly construct the device bar his or her §240 claim?
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