| Deshields v Carey |
| 2010 NY Slip Op 00439 [69 AD3d 1191] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Jose Deshields, Appellant, v Deborah Carey,Respondent. |
—[*1] Knych & Whritenour, L.L.C., Syracuse (Matthew E. Whritenour of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Catena, J.), entered November 10,2008 in Montgomery County, which granted defendant's motion for summary judgmentdismissing the complaint.
Defendant engaged plaintiff to perform renovations and repairs on defendant's two-familyhouse in the Town of Fultonville, Montgomery County. In January 2005, while installing siding,plaintiff fell from a height of 10 to 15 feet. Plaintiff commenced this action against defendantseeking damages for his injuries, alleging a common-law negligence cause of action as well asclaims pursuant to Labor Law §§ 200, 240 (1) and § 241 (6). Defendantmoved for summary judgment dismissing the complaint. Supreme Court granted the motion in itsentirety, and plaintiff appeals.[FN1]
The extension ladder that plaintiff was using when he fell had been provided by defendant.Neither plaintiff nor his coworkers could recall whether he had erected the ladder. No one washolding the base of plaintiff's ladder at the time of the fall. He had been on the ladder forapproximately 15 minutes and was nailing a piece of siding into place when he and the ladderfell to the ground. Plaintiff testified that he landed on top of the ladder with his foot still on therung. While he did not know how the accident happened, he did not believe that the extensionladder retracted as it fell. The only witness to the accident testified that, as the ladder fell, itsbase slid directly away from the wall, its upper tips slid downward along the wall, and theextended ladder appeared to retract, at least in part. A coworker who saw plaintiff and the ladderon the ground immediately afterward testified that it had begun to rain and that he believed theladder fell because its base slid out of place on the wet and slippery ground. Another coworkerwho arrived at the scene shortly after the accident said that the ground was wet and icy and thathe saw skid marks on the ground where the ladder's feet had "kicked out," as well as marks lefton the wall by the ladder's tips sliding downward. Defendant testified that plaintiff told her afterthe accident occurred that he had put the ladder up. Neither the coworkers nor defendant noticedwhether the ladder had retracted.
Labor Law § 240 (1) obliges owners and contractors "to construct, place and operateelevation-related safety devices to provide workers with proper protection from risks inherent inelevation-related work sites" (Dowlingv McCloskey Community Servs. Corp., 45 AD3d 1232, 1233 [2007]; see Ball v Cascade Tissue Group-N.Y.,Inc., 36 AD3d 1187, 1188 [2007]). This statutory duty is nondelegable (see Sanatass v Consolidated Inv. Co.,Inc., 10 NY3d 333, 339 [2008]), but a defendant may establish its entitlement tosummary judgment by showing that no statutory violation has occurred and that the soleproximate cause of an accident was the plaintiff's own actions (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 289 n 8 [2003]).
It is undisputed that the ladder on which plaintiff was working slipped, collapsed, or bothand, thus, that it failed to provide plaintiff with the required protection (see Squires v MariniBldrs., 293 AD2d 808, 808-809 [2002], lv denied 99 NY2d 502 [2002];Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 854 [1995]). Supreme Courtfound that the sole proximate cause of the accident was plaintiff's negligence in allegedly failingto secure hooks that would have kept the ladder from retracting. However, the evidence does notconclusively establish that plaintiff erected the ladder or, even if he did, that the accidentnecessarily occurred because the hooks were not secured. Plaintiff responded affirmatively whenasked whether the ladder had "hooks that would hook onto the eyes . . . to extendit." While the presence of these hooks was thus established, there was no other evidence as totheir nature and function. Plaintiff did not testify as to whether the hooks served to prevent theextended ladder from collapsing, whether they functioned automatically or had to be manuallysecured, or whether plaintiff had secured them or checked their security before climbing theladder, nor was there any other evidence establishing these relevant facts. Plaintiff did not knowwhether the ladder's hooks became disengaged when it fell, and no other witness alleged that thisoccurred. Nor does the evidence clearly establish that the accident occurred because the ladderretracted. When the sole eyewitness was asked whether the ladder began to retract before or afterthe base began to slide, she was uncertain, providing differing versions of the events. Thus, itwas not shown that the accident was caused by plaintiff's misuse of the ladder rather than byimproper placement on slippery ground or another violation of defendant's statutory duty(contrast Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 289-292).
Plaintiff further contends that Supreme Court should not have relied upon an affidavit ofdefendant's expert, an orthopedic surgeon, who opined that plaintiff suffered crush injuries to hisfoot that were consistent with being caught or pinched between two rungs of the collapsingladder and were not consistent with a fall from a height. Plaintiff's claim that he was prejudicedby the affidavit's late submission is raised for the first time on appeal and is therefore notpreserved for our review (see Telaro v Telaro, 25 NY2d 433, 438 [1969]; Herron v Essex Ins. Co., 34 AD3d913, 914 [2006], lv dismissed 8 NY3d 856 [2007]). Although his substantiveobjections to the affidavit's content were adequately preserved, we do not find that it wasinappropriate for the court to consider the physician's opinion either on the ground that he wasunqualified to offer an opinion as to causation (see Falah v Stop & Shop Cos., Inc., 41 AD3d 638, 639 [2007]), oron the ground that the affidavit constituted circumstantial evidence (see Dillon v RockawayBeach Hosp., 284 NY 176, 179 [1940]). However, the physician's opinion is insufficient toestablish that plaintiff's actions, rather than defendant's failure to comply with her statutoryobligations, caused his accident. Thus, defendant did not meet her burden of presentingadmissible evidence establishing her entitlement to summary judgment dismissing plaintiff'sclaim under Labor Law § 240 (1) (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
Plaintiff further challenges the dismissal of his claim under Labor Law § 241 (6). It isundisputed that no one was holding plaintiff's ladder at the base and that no mechanical deviceswere in use to hold it in place, and there are factual questions as to whether the accident occurredbecause the ladder slid or slipped out of place. Thus, plaintiff presents a viable claim as to theviolation of 12 NYCRR 23-1.21 (b) (4) (iv). As to the claimed violation of 12 NYCRR 23-1.21(d) (2), the proof established that the ladder on which plaintiff was injured was equipped withhooks, but was insufficient to establish that these hooks were, as required, "automatic positiveacting locks" (12 NYCRR 23-1.21 [d] [2]). Defendant's contention that the accident was solelycaused by plaintiff's failure to secure these hooks necessarily poses questions as to whether theywere automatic and whether they were locked in place when the ladder was extended(see 12 NYCRR 23-1.21 [d] [2]).[FN2]Therefore, plaintiff's claim pursuant to Labor Law § 241 (6) should not have beensummarily dismissed.
Cardona, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order ismodified, on the law, with costs to plaintiff, by reversing so much thereof as granted defendant'smotion dismissing the Labor Law § 240 (1) cause of action and the Labor Law §241 (6) cause of action to the extent that it alleges violations of 12 NYCRR 23-1.21 (b) (4) (iv)and (d) (2); motion denied to that extent; and, as so modified, affirmed.
Footnote 1: Plaintiff's brief does not addressSupreme Court's dismissal of his common-law negligence claim or his claim pursuant to LaborLaw § 200; thus, we deem any claims with respect to these causes of action to beabandoned (see Kirk v Outokumpu Am.Brass, Inc., 33 AD3d 1136, 1137 n [2006]).
Footnote 2: Plaintiff does not challengeSupreme Court's determination that violations of 12 NYCRR 23-1.5 and 23-1.7 (d) and (f),alleged in the complaint, do not support his claim under Labor Law § 241 (6).