| Gatto v Clifton Park Senior Living, LLC |
| 2011 NY Slip Op 09240 [90 AD3d 1387] |
| December 22, 2011 |
| Appellate Division, Third Department |
| Daniel A. Gatto Jr., Respondent, v Clifton Park SeniorLiving, LLC, et al., Appellants. |
—[*1] Martin, Harding & Mazzotti, L.L.P., Albany (Craig A. Cushing of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (J. Sise, J.), entered March 18,2011 in Montgomery County, which granted plaintiff's motion for partial summary judgment onthe issue of liability pursuant to Labor Law § 240 (1).
Defendant Jersen Industries, Inc. was the general contractor constructing a condominiumcomplex on property owned by defendant Clifton Park Senior Living, LLC. Plaintiff wasemployed by the drywall subcontractor and was working on the project as a taper. On the day ofthe incident, as he had for the previous five months on this project, plaintiff was using his ownstilts to tape a nine-foot ceiling. That day, however, one of the bolts on one stilt broke, causingthe stilt to collapse. Plaintiff fell, resulting in injuries.
Plaintiff commenced this action against, among others, the owner and generalcontractor.[FN*]Plaintiff moved for partial summary judgment against those two defendants on the issue of theirliability pursuant to Labor Law § 240 (1). Supreme Court granted the motion, promptingdefendants to appeal.[*2]
We affirm. Plaintiff was performing construction work ona nine-foot ceiling, which necessarily required him to raise himself up to reach that height.Although the stilts only raised him about 1½ feet off the floor, this height differentialcreated an elevation-related hazard within the purview of Labor Law § 240 (1) (seeRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]; Miller v C.O.Falter Constr. Corp., 226 AD2d 1110, 1110 [1996]; see also Amo v Little RapidsCorp., 301 AD2d 698, 701-702 [2003], appeal dismissed and lv denied 100 NY2d531 [2003]). Plaintiff established a prima facie violation of the statute as a matter of law becausethe stilt collapsed, thereby failing to perform its function of supporting him (see Ball v Cascade Tissue Group-N.Y.,Inc., 36 AD3d 1187, 1188 [2007]; Squires v Marini Bldrs., 293 AD2d 808, 809[2002], lv denied 99 NY2d 502 [2002]).
Plaintiff, the president of his employer and representatives from Jersen Industries testified atdepositions that tapers regularly work off of stilts, and that stilts were "ideal," "typical" and"appropriate" equipment for performing taping and drywall work. Neither the owner nor generalcontractor provided any type of safety equipment to tapers on the project. While ladders andbaker's scaffolds may have been present at the scene, there is no proof that using them wouldhave been feasible or more appropriate for the project than working off of stilts. No oneinstructed plaintiff to use a ladder or scaffold, nor did anyone instruct him not to use stilts.Therefore, plaintiff was not a recalcitrant worker—i.e., he did not fail or refuse to useavailable safety equipment (compareRobinson v East Med. Ctr., LP, 6 NY3d 550, 554-555 [2006]; Maloney v J.W. Pfeil & Co., Inc., 84AD3d 1632, 1633 [2011]). As all of the witnesses who addressed the topic testified thatplaintiff was using appropriate safety equipment (see Matos v Garden State Brick Face ofMiddle Vil., 272 AD2d 70, 70 [2000]) and he established a prima facie statutory violationdue to the collapse of a stilt, his actions cannot be the sole proximate cause of the accident(see Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d at 1189). Plaintiff met his burdenof establishing a prima facie case under the statute and defendants failed to raise an issue of fact.Thus, Supreme Court properly granted his motion for partial summary judgment on the issue ofliability under Labor Law § 240 (1).
Rose, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: It is unclear what role, if any,the other defendants had in the construction project.