| Rico-Castro v Do & Co N.Y. Catering, Inc. |
| 2009 NY Slip Op 01789 [60 AD3d 749] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Wilmar Rico-Castro, Respondent, v Do & Co New YorkCatering, Inc., Appellant. |
—[*1] Kelner and Kelner, New York, N.Y. (Gail S. Kelner of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from so much ofan order of the Supreme Court, Queens County (Grays, J.), dated November 29, 2007, as deniedthose branches of its cross motion which were for summary judgment dismissing the causes ofaction alleging violations of Labor Law § 240 (1) and § 241 (6), granted theplaintiff's motion for summary judgment on the issue of liability on the cause of action allegingviolations of Labor Law § 240 (1), and granted the plaintiff's cross motion for leave toserve a supplemental bill of particulars.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was employed by nonparty Olympic Fence & Railing Co., Inc. (hereinafterOlympic Fence), a company hired by the defendant to remove an interior 12-foot fence toppedwith barbed wire in the defendant's warehouse and reinstall it elsewhere in the same warehouse.The fence was bolted to a concrete floor and holes needed to be drilled in the floor in order tomove it. The warehouse was supported by concrete columns located near the walls.
The plaintiff initially used a 10-foot A-frame ladder in an open position without incident tocut the barbed wire topping the fence. However, he then used the A-frame ladder in a closedposition in order to reach the fence. The floor upon which he placed the ladder was polished andslippery. While the plaintiff was standing on the top rung of the ladder, the ladder slipped. Theplaintiff caught his arm on a metal hook protruding from the column when he fell, thus injuringit, [*2]and also sustained other injuries.
The Supreme Court properly granted the plaintiff's motion for summary judgment on theissue of liability on the cause of action alleging violations of Labor Law § 240 (1), anddenied those branches of the defendant's cross motion which were for summary judgmentdismissing that cause of action and the cause of action alleging violation of Labor Law §241 (6). The plaintiff established his prima facie entitlement to judgment as a matter of law onthe Labor Law § 240 (1) cause of action, and, in opposition, the defendant failed to raise atriable issue of fact. The defendant also failed to establish its prima facie entitlement to judgmentas a matter of law dismissing the Labor Law § 241 (6) cause of action.
Contrary to the defendant's contention, the plaintiff was engaged in work covered by LaborLaw § 240 (1) at the time of the accident. Olympic Fence was hired to move a 12-footfence bolted to a concrete floor and rebolt it in a new location for purposes of reconfiguring awarehouse. Such activity clearly goes beyond routine maintenance and constitutes an "alteration"within the meaning of the statute (see Panek v County of Albany, 99 NY2d 452, 458[2003]; Joblon v Solow, 91 NY2d 457, 465 [1998]).
The fact that the plaintiff was actually cutting barbed wire rather than physically moving thefence at the time of his injury is of no consequence under the circumstances. As the Court ofAppeals stated in Prats v Port Auth. of N.Y. & N.J. (100 NY2d 878, 882 [2003]), "it isneither pragmatic nor consistent with the spirit of [Labor Law § 240 (1)] to isolate themoment of injury and ignore the general context of the work. The intent of the statute was toprotect workers employed in the enumerated acts, even while performing duties ancillary tothose acts."
Additionally, the record does not support the defendant's contention that the plaintiff's ownactions were the sole proximate cause of his injuries. The defendant does not dispute theplaintiff's claim that he was not provided with adequate safety devices. Even assuming that theplaintiff was negligent in using the A-frame ladder in the closed position, that act alone isinsufficient to strip him of statutory protection (see Rudnik v Brogor Realty Corp., 45 AD3d 828, 829 [2007]).
Moreover, in this case, the plaintiff appears to have been following the example of hiscoworkers and acting with the tacit approval of his supervisor (see Pichardo v Aurora Contrs., Inc., 29AD3d 879, 880-881 [2006]). Furthermore, nothing in the record suggests that, based oncompany protocol, the plaintiff should have returned to his company's facility to obtain a straightladder, and the parties do not dispute that no straight ladders were present at the job site (cf. Robinson v East Med. Ctr., LP, 6NY3d 550, 554 [2006]).
The defendant's contentions that the Labor Law § 241 (6) cause of action should havebeen dismissed because the plaintiff's work activity did not fall within the statute's ambit andbecause the plaintiff failed to allege a violation of a specific Industrial Code provision in a timelyfashion are without merit. The activity in which the plaintiff was engaged constitutedconstruction work within the meaning of Labor Law § 241 (6) (see Joblon vSolow, 91 NY2d at 466).
The Supreme Court properly granted the plaintiff's cross motion for leave to serve asupplemental bill of particulars specifying Industrial Code violations even though the note ofissue had already been filed. The supplemental bill of particulars does not contain new factualallegations, raise new theories of liability, or prejudice the defendant (see Dowd v City ofNew York, 40 AD3d [*3]908, 911 [2007]; Kelleir vSupreme Indus. Park, 293 AD2d 513, 514 [2002]).
The defendant's remaining contentions are without merit. Rivera, J.P., Leventhal, Belen andChambers, JJ., concur.