| Yost v Quartararo |
| 2009 NY Slip Op 05936 [64 AD3d 1073] |
| July 23, 2009 |
| Appellate Division, Third Department |
| Christopher Yost, Respondent, v Peter Quartararo et al.,Appellants. |
—[*1] Fauci & Kupperman, P.L.L.C., Ballston Spa (James A. Fauci of counsel), forrespondent.
Mercure, J. Appeal from an order of the Supreme Court (Williams, J.), entered June 6, 2008in Saratoga County, which, among other things, granted plaintiff's motion for partial summaryjudgment on the issue of liability pursuant to Labor Law § 240 (1).
In 2006, defendant Peter Quartararo hired plaintiff to, among other things, replace the roof ofa motel. As part of that work, plaintiff was required to secure a tarp covering the roof, which heaccomplished while standing on the second-floor balcony of the motel. When the balcony railingthat plaintiff was leaning against broke, he fell approximately 10 feet to the parking lot pavementbelow and sustained injuries to his spine.
Plaintiff thereafter commenced this action, asserting negligence and violations of Labor Law§§ 200, 240 (1) and § 241 (6). Following joinder of issue, plaintiff moved forsummary judgment on his Labor Law § 240 (1) claim and defendants cross-moved forsummary judgment dismissing the complaint. Supreme Court granted plaintiff's motion andpartially granted defendants' cross motion insofar as it sought to dismiss certain grounds forplaintiff's Labor Law § 241 (6) claim. Defendants appeal and we affirm.[FN*]
It is well settled that Labor Law § 240 (1) implicates those hazards that are "related tothe effects of gravity where protective devices are called for . . . because of adifference between the elevation level of the required work and a lower level" (Rocovich vConsolidated Edison Co., 78 NY2d 509, 514 [1991]; see Auchampaugh v Syracuse Univ., 57 AD3d 1291, 1292 [2008]).Here, we reject plaintiff's claim that liability under Labor Law § 240 (1) must be imposedbecause the balcony functioned as a de facto scaffold or the equivalent of a safety device. Rather,as defendants argue, plaintiff's mere use of the balcony to reach the roof is insufficient to imposeliability under Labor Law § 240 (1) because a permanent appurtenance to a building doesnot normally constitute the functional equivalent of a scaffold or other safety device within themeaning of the statute (see Milanese vKellerman, 41 AD3d 1058, 1060-1061 [2007]; Caruana v Lexington Vil. Condominiums at Bay Shore, 23 AD3d509, 510 [2005]; D'Egidio v Frontier Ins. Co., 270 AD2d 763, 765 [2000], lvdenied 95 NY2d 765 [2000]; Avelino v 26 Railroad Ave., 252 AD2d 912, 913[1998]; Williams v City of Albany, 245 AD2d 916, 917 [1997], appeal dismissed91 NY2d 957 [1998]; compare Beard vState of New York, 25 AD3d 989, 991 [2006]; Craft v Clark Trading Corp., 257AD2d 886, 887-888 [1999]).
Nevertheless, we conclude that plaintiff demonstrated that he was exposed to "theexceptionally dangerous conditions posed by elevation differentials at work sites" which LaborLaw § 240 (1) was designed to address (Misseritti v Mark IV Constr. Co., 86NY2d 487, 491 [1995]; see Avelino v 26 Railroad Ave., 252 AD2d at 913). That is,plaintiff established that "the required work itself [was] performed at an elevation, i.e., at theupper elevation differential, such that one of the devices enumerated in the statute" would haveallowed plaintiff to safely secure the tarp (D'Egidio v Frontier Ins. Co., 270 AD2d at765). Specifically, the record reveals that plaintiff was required to lean against and over thebalcony railing to reach the tarp, with nothing but that railing to protect him from falling into theopen space beyond and to the parking lot below. Thus, while the balcony itself cannot be deemeda de facto safety device, it did, in fact, constitute an elevated work site. Given that no safetydevice was provided to protect plaintiff from the risk of falling over or through the balconyrailing, we agree with Supreme Court that plaintiff was entitled to summary judgment on hisLabor Law § 240 (1) claim (see Felker v Corning Inc., 90 NY2d 219, 224 [1997];Kaminski v Carlyle One, 51 AD3d473, 474 [2008]; Oliveira v Dormitory Auth. of State of N.Y., 292 AD2d 224, 224[2002]; Barnaby v A. & C. Props., 188 AD2d 958, 959-960 [1992]).
Finally, "[i]nasmuch as defendants are liable to plaintiff under Labor Law § 240 (1)for the only damages that plaintiff can recover, defendants' arguments concerning the validity ofthe other theories of liability contained in the complaint are academic" (Covey v IroquoisGas Transmission Sys., 218 AD2d 197, 201 [1996], affd 89 NY2d 952 [1997];see Squires v Marini Bldrs., 293 AD2d 808, 809 [2002], lv denied 99 NY2d 502[2002]).[*2]
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ.,concur. Ordered that the order is affirmed, with costs.
Footnote *: Defendants' notice of appealwas expressly limited to that portion of Supreme Court's order dealing with plaintiff's Labor Law§ 240 (1) and § 241 (6) claims. Therefore, their arguments regarding plaintiff'snegligence and Labor Law § 200 claims are not properly before us (see Brodeur v Hayes, 18 AD3d979, 981-982 [2005], lv dismissed and denied 5 NY3d 871 [2005]).