| Willard v Thomas Simone & Son Bldrs., Inc. |
| 2007 NY Slip Op 08502 [45 AD3d 1276] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Mark S. Willard, Respondent, v Thomas Simone & Son Builders,Inc., Appellant and Third-Party Plaintiff. David B. Sanderson, Doing Business as PioneerConstruction, Third-Party Defendant-Appellant. |
—[*1] Trevett Cristo Salzer & Andolina, P.C., Rochester (Cynthia A. Constantino Gleason ofcounsel), for third-party defendant-appellant. The Barnes Firm, P.C., Buffalo (Jeffrey C. Sendziak of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.),entered April 24, 2006. The order, insofar as appealed from, denied in part the motion ofthird-party defendant and the cross motion of defendant and third-party plaintiff for summaryjudgment and granted plaintiff's cross motion for partial summary judgment on the issue ofliability pursuant to Labor Law § 240 (1).
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained when he slid feet first from the roof of a house he wasconstructing. As a result of the fall, plaintiff fractured his heels and was required to undergoreconstructive surgery. Defendant and third-party plaintiff, Thomas Simone & Son Builders, Inc.(Simone), was the owner and developer of the site where defendant was working, and Simonehad hired plaintiff's employer, third-party defendant, David B. Sanderson, doing business asPioneer Construction (Pioneer), to frame a residence at the location.[*2]
On the day of the accident, plaintiff and David Sandersonwere nailing plywood onto the roof of the house. Plaintiff was standing on plywood sheets on thefront forks of a forklift, which had been elevated to the level of the roof, about 16 or 18 feet fromthe ground. He was cutting the sheets to the dimensions needed by Sanderson, who was standingon the roof of the house, and Sanderson then nailed them into place. In attempting to access aportable bathroom on the construction site, plaintiff stepped off the forklift onto the roof andwalked over to a window. He intended to step through the window, walk across a header to thesecond story floor, and reach the portable bathroom by way of a ladder or interior scaffolding.When he discovered that he was unable to descend in that manner, he attempted to walk backacross the roof toward the forklift, whereupon he slipped and fell to the ground.
We reject the contentions of Simone and Pioneer that plaintiff's actions were the soleproximate cause of the accident and thus that Supreme Court erred in granting the cross motionof plaintiff for partial summary judgment on his Labor Law § 240 (1) cause of action.Labor Law § 240 (1) imposes a duty upon a contractor or owner to provide properprotection to workers employed in elevation-related work (see generally Misseritti v Mark IVConstr. Co., 86 NY2d 487, 490-491 [1995], rearg denied 87 NY2d 969 [1996]).Where the failure to do so causes injury to the worker, the contractor or owner is liable for thoseinjuries unless the worker's own actions are the sole proximate cause of the accident (see Robinson v East Med. Ctr., LP, 6NY3d 550, 554 [2006]; see alsoFigueiredo v New Palace Painters Supply Co. Inc., 39 AD3d 363, 364 [2007]; LoVerde v 8 Prince St. Assoc., LLC,35 AD3d 1224, 1226 [2006]). Here, plaintiff established that neither Simone nor Pioneerprovided him with a proper safety device on the day of the accident. The forklift was the onlymeans by which to access the roof or to descend from it, and the forklift was neither designed asan elevation safety device nor adequate for that purpose as used here, because it could not becontrolled from the rooftop where plaintiff and Sanderson were working. We thus conclude thatplaintiff established as a matter of law that his actions in attempting to descend by climbing ontothe roof and through a window were neither negligent nor the sole proximate cause of plaintiff'sfall (cf. Robinson, 6 NY3d at 555; Montgomery v Federal Express Corp., 4 NY3d 805 [2005]), andSimone and Pioneer failed to raise an issue of fact sufficient to defeat plaintiff's cross motion(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
We further conclude that the court properly denied that part of Pioneer's motion for summaryjudgment dismissing the cause of action in the third-party complaint for contractualindemnification. Although Pioneer submitted evidence to the effect that a contract with Simonefor indemnification was never signed, the deposition testimony of Thomas Simone submitted byPioneer in support of its motion establishes the existence of a contract signed by Sanderson's thenpartner. With respect to the further contention of Pioneer that the court erred in denying that partof its motion for summary judgment dismissing the third-party complaint insofar as it soughtcommon-law indemnification, we note that the court did in fact grant that part of Pioneer'smotion. Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Green, JJ.