| Maloney v J.W. Pfeil & Co., Inc. |
| 2011 NY Slip Op 04156 [84 AD3d 1632] |
| May 19, 2011 |
| Appellate Division, Third Department |
| James Michael Maloney, Appellant, v J.W. Pfeil &Company, Inc., et al., Respondents. |
—[*1] Whiteman, Osterman & Hanna, Albany (Christopher E. Buckley of counsel), forrespondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Hummel, J.), entered September15, 2010 in Rensselaer County, which, among other things, granted defendants' cross motion forsummary judgment dismissing the complaint.
On October 8, 2007, plaintiff was employed by a subcontractor hired to participate in therenovation of a building owned by defendant Troy Living, LLC in the City of Troy, RensselaerCounty. That day, plaintiff, while standing on the top cap of a six-foot ladder installing sheetrockon an overhead soffit, fell and was injured. Plaintiff thereafter commenced this action, allegingviolations of Labor Law §§ 200, 240 (1) and § 241 (6), claiming, among otherthings, that he was not provided an adequate safety device to perform work at an elevated height.Following joinder of issue and discovery, plaintiff moved for partial summary judgment on hisLabor Law § 240 (1) cause of action and defendants cross-moved for summary judgmentdismissing the complaint. Supreme Court denied plaintiff's motion and granted defendants' crossmotion, concluding that plaintiff's failure to utilize an available safety device was the soleproximate cause of his accident. Plaintiff appeals and we now affirm.
Contrary to plaintiff's argument, Supreme Court correctly dismissed his Labor Law §240 (1) [*2]cause of action. Significantly, liability under thatstatute "requires [the] plaintiff to demonstrate that [the] defendants violated that statute and thatthe statutory breach proximately caused [the] plaintiff's accident" (Weinberg v Alpine Improvements,LLC, 48 AD3d 915, 916 [2008]). Here, depositions from plaintiff's supervisor andcoworker established that numerous safety devices appropriate for the work that plaintiff wasperforming at the time of his accident, such as eight-foot ladders, baker's scaffolds, "stilts" andmechanical lifts, were available at the job site in the building.[FN1]In his deposition testimony, plaintiff admitted knowing that there were other safety devices inother locations in the building better suited for the type of work he was about to perform and thathe had routinely used these devices while working on this project. He acknowledged that abaker's scaffold was in his immediate work area and, at the time of his fall, was being used by anassociate working with him. Plaintiff also acknowledged that the stepladder he was using at thetime of his fall, while not defective, was not tall enough for the work he was performing, and headmitted knowing that it contained a written warning never to stand on the top cap of the ladderwhen using it. Given this proof, we find that defendants made a prima facie showing that LaborLaw § 240 (1) was not violated (see id. at 917; see also Jock v Landmark Healthcare Facilities, LLC, 62 AD3d1070, 1071 [2009]), shifting the burden to plaintiff to raise a triable issue of fact as to thisclaim.
Plaintiff testified that he tried to find a more appropriate safety device near where he wasworking and that none was available. However, he admitted that he confined his efforts in thatregard to the second floor of the building and did not look in other areas of the work site for adevice that would be more suitable for his work (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 555 [2006]; Torres v Mazzone Admin. Group, Inc.,46 AD3d 1040, 1041 [2007], lv denied 10 NY3d 706 [2008]). In addition, plaintiffacknowledged that he chose the six-foot ladder not because he was ordered to do so or becausehe was under some time constraint within which he had to complete the job, but because, in hisown words, "it was the quickest thing to grab." Under the circumstances, defendants haveestablished that adequate safety devices were readily available on the job site and that plaintiff'sdecisions "to use a six-foot ladder that he knew was too short for the work to be accomplishedand then standing on the ladder's top cap in order to reach the work—were, as a matter oflaw, the sole proximate cause" of his injuries (Robinson v East Med. Ctr., LP, 6 NY3d at555; see Torres v Mazzone Admin. Group, Inc., 46 AD3d at 1041).
Plaintiff's Labor Law § 200 and common-law negligence claims were also properlydismissed [*3]because defendants established that they did notexercise supervisory control over plaintiff's work, nor did they create or have notice, either actualor constructive, of any dangerous condition that contributed to the cause of this accident (seeWeinberg v Alpine Improvements, LLC, 48 AD3d at 918; Torres v Mazzone Admin.Group, Inc., 46 AD3d at 1041; Biance v Columbia Washington Ventures, LLC, 12 AD3d 926, 927[2004]). As for the Labor Law § 241 (6) claim, plaintiff was required to allege a violationof a specific regulatory standard (see Weinberg v Alpine Improvements, LLC, 48 AD3dat 917-918; Torres v Mazzone Admin. Group, Inc., 46 AD3d at 1041). While plaintiffalleges that 12 NYCRR 23-1.21 (e) (2) and (3) were violated, the record is devoid of any proof orfacts that support his contentions in that regard.[FN2]Plaintiff's remaining arguments have been examined and found to be lacking in merit.
Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: A representative of plaintiff'semployer testified that four baker's scaffolds were actually on the second floor of the job sitewhere plaintiff was working at the time of his accident. He estimated that there were at least 15ladders at the job site, four of which were eight feet in length. The representative also testifiedthat other contractors on the job site had numerous eight-foot ladders, as well as at least threebaker's scaffolds and two mechanical lifts, which, according to the representative, were not beingused at the time of plaintiff's accident. In addition, the representative testified that it was thepractice at the job site for employees of the different contractors to routinely use this safetyequipment.
Footnote 2: 12 NYCRR 23-1.21 (e) (2)states that "bracing as may be necessary for rigidity shall be provided for every stepladder. Whenin use every stepladder shall be opened to its full position and the spreader shall be locked."Additionally, 12 NYCRR 23-1.21 (e) (3) states that "[s]tanding stepladders shall be used only onfirm, level footings. When work is being performed from a step of a stepladder 10 feet or moreabove the footing, such stepladder shall be steadied by a person stationed at the foot of thestepladder or such stepladder shall be secured against sway by mechanical means."