(dissenting). We respectfully dissent.
Special Term properly found that summary judgment is unwarranted in that issues of fact exist for resolution by the trier of facts. To survive defendants’ motion for summary judgment, plaintiff needed to establish that questions of fact exist as to whether a violation of Labor Law § 240 was a substantial cause of the injury to him (Duda v Rouse Constr. Corp., 32 NY2d 405), and that defendants were persons responsible for his safety pursuant to Labor Law §§ 200 and 241. Plaintiff sufficiently established both, thus warranting a trial of factual issues.
Labor Law § 240 imposes on owners and contractors a duty to provide reasonable and adequate protection and safety to persons employed on or lawfully frequenting areas on which construction, excavation or demolition work is being performed. The section is to be liberally construed to protect workers (Zimmer v Chemung County Performing Arts, 65 NY2d 513; Quigley v Thatcher, 207 NY 66). The responsibility under the law also extends to agents of owners and general contractors due to their statutory inclusion in Labor Law §§ 240 and 241 (Russin v Picciano & Son, 54 NY2d 311). *175Whether all these defendants are responsible for plaintiffs injuries is a factual issue requiring resolution by the trier of facts.
Plaintiff also raised a question of fact as to defendants’ responsibility for his injuries through his sworn testimony that defendants allowed the placement of construction scaffolding which did not afford him enough working space and placed him in an unsafe position while pounding in nails. Plaintiff has sufficiently raised the issue of whether defendants’ violation of Labor Law § 240 was a proximate cause of his injury. A jury could conclude that, but for the defendants’ violation of section 240 in not according plaintiff an adequate work area, the accident would not have occurred. Plaintiff was assigned to construct a beam. He did it while on the scaffolding. The scaffold was already constructed when he arrived and was assigned his work. We ascribe no significance to the fact that plaintiff assembled the beam on the scaffolding. Plaintiff and another employee who was his foreman placed the lumber on the scaffold for plaintiff to fabricate. Due to dissimilar end members, plaintiff found himself at a height vis-á-vis the nailing surface which was not safe. The foreseeability of flying nails in construction is self-evident. An inappropriate scaffolding height could be found to have imperilled plaintiff by exposing his face surface more closely to the area where he was pounding in nails.
Further, plaintiff’s actions, even though they might have been negligent and a contributing cause of the accident, will not be an intervening cause of an accident unless plaintiff’s culpability supersedes defendants’ negligence as the cause of the accident (see, Mesick v State of New York, 118 AD2d 214, lv denied 68 NY2d 611). On the moving papers before us, it cannot be said as a matter of law that plaintiff’s action rose to the level of a superseding force absolving these defendants (cf. Boltax v Joy Day Camp, 67 NY2d 617).
Accordingly, we would affirm Special Term’s order.
Casey, J. P., and Weiss, J., concur with Harvey, J; Mikoll and Yesawich, Jr., JJ., dissent and vote to affirm in an opinion by Mikoll, J.
Order reversed, on the law, without costs, motion granted and complaint dismissed.
[The following page is 177.]