| Weinberg v Alpine Improvements, LLC |
| 2008 NY Slip Op 01465 [48 AD3d 915] |
| February 21, 2008 |
| Appellate Division, Third Department |
| Michael Weinberg, Appellant, v Alpine Improvements,LLC, et al., Respondents. |
—[*1] Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for respondents.
Spain, J. Appeal from an order of the Supreme Court (Kramer, J.), entered May 31, 2006 inSchenectady County, which granted defendants' motion for summary judgment dismissing thecomplaint.
On May 1, 2001 plaintiff was injured when he slipped and fell from the third or fourth rungof a stepladder while replacing light fixtures. He had reportedly stepped in a cheese-likesubstance in another area of the building, prior to ascending the ladder. The fall occurred during arenovation project in a building owned by defendant Alpine Improvements, LLC in the Town ofWappinger Falls, Dutchess County, and leased to Super Stop & Shop which operated asupermarket therein. Plaintiff was employed as an electrician by T & J Electric, Inc., theelectrical subcontractor, on a project on which defendant Discover General ContractingCorporation was the general contractor. Discover contracted with Super Stop & Shop to performrenovation work on the supermarket, which was to be done at night and the store would remainopen part of the time. Plaintiff commenced this action alleging liability under Labor Law§§ 200, 240 (1) and § 241 (6) and common-law negligence principles.Defendants moved for summary judgment on all claims, which plaintiff opposed. Supreme Courtgranted defendants' motion on the record from the bench, without written decision. Plaintiffappeals.
Liability under Labor Law § 240 (1) requires plaintiff to demonstrate that defendants[*2]violated that statute and that the statutory breach proximatelycaused plaintiff's accident (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). Plaintiff testifiedthat he was standing on the third or fourth rung of the stepladder changing light fixturesoverhead, when his "feet . . . gave way" and he fell onto the floor, landing on his"butt." He noticed slippery cheese-like debris on the bottom of his work boots and surmised thathis greasy boots had slipped off the rungs. He recalled having earlier walked through theuncleaned deli area of the store where cheese is grated, which he described as "always slippery"even when cleaned, although he observed no food on the floor; he believed that his boots cameinto contact with the cheese-like substance on the floor in that area, prior to continuing on toanother area of the store to complete the work that he was performing at the time of the fall.Plaintiff conceded that the ladder did not fail "in any way." There was no proof that it collapsed,fell over, malfunctioned, failed to support him or was defective in any respect, or that it wasimproperly placed or inadequate for the task at hand. There were no eyewitnesses to the incidentand no expert testimony adduced.
On this proof, we find that defendants demonstrated entitlement to summary judgmentdismissing plaintiff's Labor Law § 240 (1) claim, which plaintiff failed to rebut. Simplyput, defendants made a prima facie showing that plaintiff was provided with an adequate safetydevice and that no violation of that statutory protection was committed which could be said to bea proximate cause of this accident (seeRobinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; Blake v NeighborhoodHous. Servs. of N.Y. City, 1 NY3d at 287; Duda v Rouse Constr. Corp., 32 NY2d405, 410 [1973]; Albert v WilliamsLubricants, Inc., 35 AD3d 1115, 1116-1117 [2006]). We recognize that, in a usual case,where a worker has been provided with a safety device such as a ladder, which did not slip,collapse or fail, whether the device afforded proper protection is ordinarily a question of fact (see Ball v Cascade Tissue Group-N.Y.,Inc., 36 AD3d 1187, 1188 [2007]; Canino v Electronic Tech. Co., 28 AD3d 932, 933 [2006];Smith v Pergament Enters. of S.I., 271 AD2d 870, 872 [2000]). Here, however, plaintiff'sown testimony established that his fall was unrelated to the adequacy or placement of the safetydevice (cf. Morin v MachnickBldrs., 4 AD3d 668, 670 [2004]), and was attributable solely to slippery boots caused byfood debris with which he came into contact in another part of the store. Notably, " 'a mere fallfrom a ladder or other similar safety device that did not slip, collapse or otherwise fail isinsufficient to establish that the ladder did not provide appropriate protection to the worker' "(Grogan v Norlite Corp., 282 AD2d 781, 782 [2001], quoting Briggs vHalterman, 267 AD2d 753, 755 [1999]; see Blake v Neighborhood Hous. Servs. of N.Y.City, 1 NY3d at 288). Further, plaintiff's claim that he would not have slipped and fallen if arolling "baker's scaffold" had been provided is speculative (see Williams v General Elec. Co., 8 AD3d 866, 867-868 [2004])and unsupported, and insufficient to defeat summary judgment. Thus, defendants were properlyawarded summary judgment dismissing plaintiff's Labor Law § 240 (1) claim.
Next, plaintiff's reliance, in support of his Labor Law § 241 (6) claim, on safety rulessetting forth general safety standards (e.g. 12 NYCRR 23-1.2, 23-1.3, 23-1.5) isunavailing, as such regulations do not create a duty given their lack of specific commands (see Berg v Albany Ladder Co., Inc., 40AD3d 1282, 1285 [2007]; see also Comes v New York State Elec. & Gas Corp., 82NY2d 876, 878 [1993]). The other regulations cited are inapplicable to these facts (see 12NYCRR 23-1.5, 23-1.16) and, since the ladder itself was not slippery, no violation of the safetymeasures required to protect workers from slipping hazards on elevated work surfaces(see 12 NYCRR 23-1.7 [d]) can be shown (cf. Smith v Fayetteville-Manlius Cent. School Dist., 32 AD3d1253, 1254 [2006]; Rizzo v Hellman Elec. Corp., 281 AD2d 258, 258-259 [2001]).[*3]
Finally, we turn to plaintiff's Labor Law § 200 andcommon-law negligence claims, which we find were properly dismissed as against Discover (thegeneral contractor), but should not have been dismissed against Alpine (the building owner).Labor Law § 200 "is a codification of the common-law duty imposed upon an owner orgeneral contractor to provide construction site workers with a safe place to work" (Comes vNew York State Elec. & Gas Corp., 82 NY2d at 877). "Where, as here, a worker's injuriesresult from an unsafe or dangerous condition existing at a work site, rather than from the mannerin which the work is being performed, the liability of a general contractor [such as Discover]. . . depends upon whether [it] had [actual or constructive] notice of the dangerouscondition [that caused the accident] and control of the place where the injury occurred" (Wolfe v KLR Mech., Inc., 35 AD3d916, 918 [2006] [citations omitted]; accord Gadani v Dormitory Auth. of State of N.Y., 43 AD3d 1218,1220-1221 [2007]; Keating v NanuetBd. of Educ., 40 AD3d 706, 708 [2007]). Discover submitted the affidavit of itsprincipal, which went unrefuted, establishing that it lacked authority to control or supervise thework site, electrical work or the deli area (or employees) where the dangerouscondition—cheese-like debris—allegedly existed; Super Stop & Shop employeeswere responsible for all supermarket-generated debris. Thus, Supreme Court's award of summaryjudgment to Discover on the Labor Law § 200 and common-law negligence claims wasproper.
However, the award of summary judgment on these claims to Alpine, the owner, wasunwarranted. With regard to an owner, it has a general duty "to maintain its premises 'in areasonably safe condition' " (Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872 [1995],quoting Basso v Miller, 40 NY2d 233, 241 [1976]). To establish entitlement to summaryjudgment on these claims, Alpine "was required to establish, as a matter of law, that it did notcreate the alleged dangerous condition and did not have actual or constructive notice of thatcondition" (Wolfe v KLR Mech., Inc., 35 AD3d at 919; accord Finger v Cortese, 28 AD3d1089, 1090 [2006]). Alpine submitted no such proof and, thus, did not establish itsentitlement to summary judgment dismissing these claims.
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as granted the motion ofdefendant Alpine Improvements, LLC for summary judgment dismissing the common-lawnegligence and Labor Law § 200 causes of action against it; motion denied to that extent;and, as so modified, affirmed.