| Reaber v Connequot Cent. School Dist. No. 7 |
| 2008 NY Slip Op 09770 [57 AD3d 640] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mAndrew Reaber et al., Appellants, v Connequot CentralSchool District No. 7 et al., Respondents. (And a Third-Party Action.) |
—[*1] Jeffrey S. Shein & Associates, P.C., Syosset, N.Y. (Charles R. Strugatz of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated June 25,2007, as denied their motion for summary judgment on the issue of liability on the cause of actionalleging a violation of Labor Law § 240 (1).
Ordered that the order is modified, on the law, by deleting the provisions thereof denying thosebranches of the plaintiffs' motion which were for summary judgment on the issue of liability on the causeof action alleging a violation of Labor Law § 240 (1) insofar as asserted against the defendantsConnequot Central School District No. 7 and Fortunato Sons, Inc., and substituting therefor provisionsgranting those branches of the motion; as so modified, the order is affirmed insofar as appealed from,with costs to the plaintiffs payable by the defendants Connequot Central School District No. 7 andFortunato Sons, Inc.
The plaintiff Andrew Reaber (hereinafter the injured plaintiff) was an employee of RevcoConstruction Corp. (hereinafter Revco), a subcontractor on a construction project at the ConnetquotHigh School, whose job was to spackle drywall at the site. On August 28, 2003, the injured plaintiffwas assigned to complete the spackling of a "tunnel" or "scuttle" that extended from the ceiling of autility room to the roof of the building. Revco had several "Baker scaffolds" in the building, and theinjured plaintiff had used one on each of the two prior occasions when he worked on the tunnel.However, on that date, other Revco employees were using two of Revco's Baker scaffolds on anotherfloor of the building. The injured plaintiff testified that he asked his supervisor if he could use a [*2]Baker scaffold, but was told that carpenters were using them, and that heshould complete the spackling of the tunnel using a ladder. The injured plaintiff selected an A-frameladder and began working on the tunnel. The ladder was fully open and seemed stable, when itsuddenly "kicked out," causing the plaintiff to fall to the ground and sustain injury. Only a few minutesafter the incident, the general contractor's foreman allegedly saw a Baker scaffold only a few feet fromthe room in which the injured plaintiff had been working.
The plaintiff and his wife, suing derivatively, commenced this action against the owner of thebuilding, Connetquot Central School District No. 7, sued herein as Connequot Central School DistrictNo. 7 (hereinafter the District), the general contractor on the project, Fortunato Sons, Inc. (hereinafterFortunato), and the construction manager, Sullivan & Nickel Construction Co., Inc. (hereinafterSullivan & Nickel), seeking damages, inter alia, for a violation of Labor Law § 240 (1). Afterdiscovery was completed, the plaintiffs moved for summary judgment on the issue of liability on theLabor Law § 240 (1) cause of action. The Supreme Court denied the motion, and the plaintiffsappeal.
The plaintiffs established their prima facie entitlement to judgment as a matter of law as against theDistrict and Fortunato by submitting proof that those defendants failed to provide the plaintiff withadequate safety devices for the elevation-related risks of his work, and that their failure was theproximate cause of his injuries (see Labor Law § 240 [1]; Gilhooly v Dormitory Auth. of State of N.Y.,51 AD3d 719, 720 [2008]). In response, those defendants failed to raise a triable issue offact. Evidence that, shortly after the accident, the general contractor's foreman saw a scaffold some 50feet from the room in which the plaintiff had been working was insufficient to raise a triable issue of factsince it did not demonstrate that the Baker scaffold had been available for the plaintiff's use when hebegan working on the tunnel that day (cf.Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]).
The plaintiffs failed, however, to establish, prima facie, that Sullivan & Nickel, the constructionmanager, was liable under Labor Law § 240 (1) as an "agent" of the owner with the ability tocontrol the plaintiff's activity that led to his injury. Thus, the Supreme Court properly denied that branchof the plaintiffs' motion which was for summary judgment on the issue of liability on the Labor Law§ 240 (1) cause of action insofar as asserted against Sullivan & Nickel (cf. Lodato v Greyhawk N. Am., LLC, 39AD3d 491, 492-493 [2007]).
The remaining contentions of the District and Fortunato are without merit. Fisher, J.P., Angiolillo,Dickerson and Belen, JJ., concur.