| Smith v Cari, LLC |
| 2008 NY Slip Op 03441 [50 AD3d 879] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Thomas C. Smith et al., Respondents, v Cari, LLC,Appellant. |
—[*1] Jasper and Jasper (William Cafaro, New York, N.Y. [Steven M. Pivovar] of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Ambrosio, J.), dated March 26, 2007, which grantedthe plaintiffs' motion for summary judgment on the issue of liability on the Labor Law §240 (1) cause of action and denied its cross motion for summary judgment dismissing thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's cross motion which was for summary judgment dismissing the LaborLaw § 241 (6) cause of action to the extent it is based on a violation of 12 NYCRR 23-1.16and substituting therefor a provision granting that branch of the motion; as so modified, the orderis affirmed, with costs to the plaintiffs.
Labor Law § 240 (1) imposes a nondelegable duty upon owners and generalcontractors to provide safety devices to protect workers from elevation-related risks (see Rossv Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Andino v BFC Partners, 303AD2d 338, 339 [2003]). The plaintiffs established that at the time of the accident the injuredplaintiff was engaged in an elevation-related repair specifically protected by Labor Law §240 (1) and that the defendant owner's failure to provide him with any safety devices proximatelycaused his injuries (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003]; Striegel vHillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]; Armentano v Broadway Mall Props., Inc., 30 AD3d 450, 450-451[2006]; Gardner v New York City Tr. Auth., 282 AD2d 430, 431 [2001]; Turisse vDominick Milone, Inc., 262 AD2d 305, 306 [1999]). In opposition, the defendant failed toraise a triable issue of fact. Accordingly, the Supreme Court correctly granted [*2]the plaintiffs' motion for summary judgment on the issue of liabilityon the Labor Law § 240 (1) cause of action.
An owner may be held liable under Labor Law § 200 and for common-law negligencefor a plaintiff's injuries resulting from a dangerous condition on the premises if the owner hadactual or constructive notice of the dangerous condition (see Payne v 100 Motor Parkway Assoc., LLC, 45 AD3d 550, 553[2007]; Kerins v Vassar Coll., 15AD3d 623, 626 [2005]). The defendant failed to meet its prima facie burden for summaryjudgment on this cause of action. The evidence demonstrates that the defendant had actualknowledge of the unsafe condition of the ladder since, a few weeks earlier, it had been cited for afire code violation for the ladder's unsecured condition, and the defendant had hired the plaintiff'semployer to remedy the defect.
The plaintiffs' cause of action pursuant to Labor Law § 241 (6) is premised onviolations of 12 NYCRR 23-1.16, which concerns safety belts, and 12 NYCRR 23-1.21 (b) (1),which requires that "[e]very ladder shall be capable of sustaining without breakage, dislodgmentor loosening of any component at least four times the maximum load intended to be placedthereon." The defendant failed to meet its prima facie burden of establishing that 12 NYCRR23-1.21 (b) (1) is inapplicable. Moreover, although the injured plaintiff's employer had beenhired to cure fire code violations by repairing the top of the water tank on the roof of thebuilding, and securing the ladder attached to the water tank from which he fell, the fact that theinjured plaintiff fell from the ladder that he was repairing does not bar him from recoveringunder Labor Law § 241 (6). At the time of the accident he was not repairing the ladder, butwas using it as his sole means of accessing the roof of the water tank the defendant had alsoengaged his employer to repair (cf.Gaisor v Gregory Madison Ave., LLC, 13 AD3d 58, 60 [2004]; Alvia v Teman Elec.Contr., 287 AD2d 421 [2001]).
However, the defendant established, prima facie, that 12 NYCRR 23-1.16 was inapplicablebecause it would only apply in this case if a safety belt had been provided to the injured plaintiff(see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616 [2008]; Dzieran v 1800 Boston Rd., LLC, 25AD3d 336, 337 [2006]; Avendano v Sazerac, Inc., 248 AD2d 340, 341 [1998]). Inopposition, the plaintiffs failed to establish that a safety belt was provided to the injured plaintiff.Accordingly, the Supreme Court should have granted that branch of the defendant's cross motionwhich was to dismiss the Labor Law § 241 (6) cause of action to the extent that it is basedon 12 NYCRR 23-1.16. Fisher, J.P., Ritter, Dillon and McCarthy, JJ., concur.