| Silvia v Bow Tie Partners, LLC |
| 2010 NY Slip Op 07458 [77 AD3d 1143] |
| October 21, 2010 |
| Appellate Division, Third Department |
| Joseph C. Silvia, III, et al., Respondents, v Bow TiePartners, LLC, et al., Defendants, and Scotia Holdings et al., Defendants and Third-PartyPlaintiffs-Appellants. D & B Acoustical, Third-PartyDefendant-Appellant. |
—[*1] Goldberg Segalla, L.L.P., Albany (Latha Raghavan of counsel), for third-partydefendant-appellant. Wein & Frament, P.L.L.C., Latham (Paul H. Wein of counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Kramer, J.), entered November 2, 2009in Schenectady County, which granted plaintiffs' motion for partial summary judgment on theissue of liability pursuant to Labor Law § 240 (1).[*2]
While working at a construction site owned by defendantScotia Holdings, at which defendant BBL Construction Services, LLC was the generalcontractor, plaintiff Joseph C. Silvia, III (hereinafter plaintiff) was injured when a plank onwhich he was standing as part of a makeshift scaffold[FN1]broke beneath him, causing him to fall several feet. Plaintiff and his wife, derivatively,commenced this action asserting, among other things, a cause of action pursuant to Labor Law§ 240. Scotia Holdings and BBL then commenced a third-party action against D & BAcoustical, plaintiff's employer and a subcontractor to BBL on the project.[FN2]After discovery was conducted, plaintiffs moved for partial summary judgment on the issue ofliability pursuant to that statute. Supreme Court granted plaintiffs' motion, prompting this appealby Scotia Holdings and BBL (hereinafter collectively referred to as defendants) and D & B. Wereverse.
Labor Law § 240 (1) requires that contractors and owners provide adequate safetydevices to protect employees against elevation-related hazards (see Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 499-500 [1993]). The failure to do so results in liability forany injuries proximately caused thereby (see Zimmer v Chemung County PerformingArts, 65 NY2d 513, 521 [1985]; seealso Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286-290 [2003]).Where an employee has been provided with an elevation-related safety device, it is usually aquestion of fact as to whether the device provided proper protection (see Beesimer v AlbanyAve./Rte. 9 Realty, 216 AD2d 853, 854 [1995]), "except in those instances where theunrefuted evidence establishes that the device collapsed, slipped or otherwise failed to performits function of supporting the worker" (Briggs v Halterman, 267 AD2d 753, 754-755[1999]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 285-286). Wealso note that "[l]iability under section 240 (1) does not attach when the safety devices thatplaintiff alleges were absent were readily available at the work site, albeit not in the immediatevicinity of the accident, and plaintiff knew he was expected to use them but for no good reasonchose not to do so, causing an accident" (Gallagher v New York Post, 14 NY3d 83, 88 [2010]).
Here, in support of their motion, plaintiffs submitted, among other things, the depositiontestimony of plaintiff and the affidavit of a professional engineer. Plaintiff testified that, inconnection with his work as a taper for D & B at the construction site in question, his supervisorprovided him with two ladders and a wooden plank and instructed him on how to build ascaffold, to be used in the stairwell area in which he had been assigned to work. The area of thewall upon which he was working was 10 feet above the floor and the plank was four to six feetabove the floor. D & B's safety plan called for either a harness or other tie-offs to be used whenwork was to be done at a height of more than four feet.
On the day of the accident, plaintiff had assembled the ladders and plank and had worked onthis makeshift scaffold until taking a break. Before taking his break, plaintiff deconstructed thescaffold and, when the break was over, he reconstructed it, using the two ladders and woodenplank that were in the location where he had left the materials. No other safety devices, such as aharness or tie-downs were used. When he walked out on the plank, he [*3]heard a pop and the plank broke beneath him, causing him to fall tothe stairs over which he was working. Plaintiff testified that, after his fall, he learned that acoworker had removed the plank that he had used in the morning and placed a broken plank nearplaintiff's work area, which plaintiff had used unknowingly when he reconstructed the scaffoldafter his break. Plaintiffs' expert opined that D & B failed to provide "any safety devices" toplaintiff and that what was provided was not a proper safety device. Specifically, plaintiffs arguethat the makeshift scaffolding did not constitute a safety device enumerated in Labor Law§ 240 (1), that the materials provided to construct the makeshift scaffolding wereinadequate and that no other safety devices—such as harnesses and tie-offs—wereprovided.
Even assuming, arguendo, that the scaffolding utilized by plaintiff constituted a safetydevice, inasmuch as the device collapsed "while being used in the performance of elevated work,we conclude that plaintiff[s] [have] established a prima facie showing of a statutory violationwhich was a proximate cause of plaintiff's injuries, [shifting the burden] to defendant[s] [and D& B] to submit evidentiary facts which would raise a factual issue on liability" (Drew vCorrect Mfg. Corp., Hughes-Keenan Div., 149 AD2d 893, 894 [1989]; see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d at 289 n 8; Morin v Machnick Bldrs., 4 AD3d668, 670-671 [2004]).
In opposition, defendants and D & B supplied the deposition testimony of Randy Cosselman,a carpenter employed by D & B, that he had observed plaintiff with the plank that ultimatelybroke and told plaintiff not to use it because it was cracked. He further testified that plaintiffreplied that he did not care. There was also deposition testimony that there were OccupationalSafety and Health Act compliant planks next to a dumpster just outside a doorway adjacent to thearea where plaintiff was working. In addition, the affidavit of a professional engineer wassubmitted. The engineer noted that scaffolds are safety devices for the purposes of Labor Law§ 240 (1). He further opined that the scaffold planking used here was compliant withapplicable regulations and that plaintiff's injuries were caused by his failure to use a sound plankthat was available. Thus, contrary to plaintiffs' contention, we find that defendants' and D & B'sargument that the makeshift scaffolding was an appropriate safety device was preserved for ourreview. In addition, testimony was provided that workers were advised in daily briefings of theavailability of harnesses and other safety equipment in the gang boxes on site. On this record, andviewing this evidence in the light most favorable to defendants and D & B as the nonmovingparties (see Rought v Price ChopperOperating Co., Inc., 73 AD3d 1414, 1414 [2010]), we conclude that they have raisedquestions of fact with regard to whether there was a statutory violation and whether plaintiff'sconduct was the sole proximate cause of his injuries (see Cantineri v Carrere, 60 AD3d 1331, 1333 [2009]; seegenerally Morin v Machnick Bldrs., 4 AD3d at 671; compare Gallagher v New YorkPost, 14 NY3d at 89; Robinson vEast Med. Ctr., LP, 6 NY3d 550, 554-555 [2006]). Accordingly, partial summaryjudgment should not have been granted to plaintiffs as to liability.
Plaintiffs' remaining contentions have been considered and are found to be without merit.
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is reversed, onthe law, with one bill of costs, and motion [*4]denied.
Footnote 1: The scaffold consisted of awooden plank placed between two ladders.
Footnote 2: Despite the fact that theamended complaint also names Bow Tie Partners, LLC and Bow Tie Cinemas, LLC asdefendants, they are apparently no longer involved in the action.