Thome v. Benchmark Main Transit Associates, LLC

Peradotto, J. (dissenting).

I respectfully dissent because I cannot agree with the majority that there is a triable issue of fact whether plaintiffs actions were the sole proximate cause of his injuries.

This Labor Law and common-law negligence action arises out of an accident that occurred during the construction of a large retail store (hereafter, project). The concrete floor of the building contained several three-foot by three-foot holes that were not guarded or barricaded in any manner, although wooden pallets had been placed in the holes as a safety measure. At the time of the accident,…