| Dalaba v City of Schenectady |
| 2009 NY Slip Op 02704 [61 AD3d 1151] |
| April 9, 2009 |
| Appellate Division, Third Department |
| Kevin Dalaba, Respondent, v City of Schenectady, Defendant, andEdison Realty Land Developers, LLC, Appellant. |
—[*1] Phillips Lytle, L.L.P., Buffalo (Craig A. Leslie of counsel), for respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Kramer, J.), entered February 13,2008 in Schenectady County, which granted plaintiff's motion for partial summary judgment.
Plaintiff, an ironworker, sustained multiple injuries on October 13, 2006 when he fell about30 feet through an opening in a roof to the ground while installing roof insulation and sheetmetal on a new building that was under construction. After issue was joined, plaintiff moved forpartial summary judgment against the building owner, defendant Edison Realty LandDevelopers, LLC, on its liability under Labor Law § 240 (1). Supreme Court granted themotion from the bench, without written decision, and Edison now appeals from the order enteredupon that decision. We affirm.
Plaintiff's fall through an opening in the roof while engaged in the construction of a newbuilding is precisely the type of elevation-related risk for which Labor Law § 240 (1) wasdesigned to provide protection (seeArey v M. Dunn, Inc., 29 AD3d 1137, 1138 [2006]; Johnson v Packaging Corp. ofAm., 274 AD2d 627, 628 [2000]; Nephew v Barcomb, 260 AD2d 821, [*2]822-823 [1999]; Clark v Fox Meadow Bldrs., 214 AD2d882, 883 [1995]; see also Rocovich v Consolidated Edison Co., 78 NY2d 509, 514[1991]). With regard to the adequacy of the safety devices, it is true that "where a worker isprovided with an elevation-related safety device, the question of whether the device providedproper protection pursuant to Labor Law § 240 (1) is ordinarily a question of fact, exceptwhere the device collapses, slips or otherwise fails to perform its function of supporting theworker" (Nephew v Barcomb, 260 AD2d at 823; see Weinberg v Alpine Improvements, LLC, 48 AD3d 915, 917[2008]; see e.g. De Turck v Cornell Univ., 305 AD2d 970, 971 [2003]; Musselman vGaetano Constr. Corp., 277 AD2d 691, 692-693 [2000]). Here, no question of fact wasraised by Edison to defeat plaintiff's motion for partial summary judgment, given the undisputedevidence that no safety devices of the type enumerated in Labor Law § 240 (1) wereprovided to plaintiff. While wire guardrails had reportedly been placed along the sides and loweredge of the roof, Edison conceded that the leading edge of the roof, where plaintiff fell, remainedunprotected. As such, plaintiff made the requisite showing, which went uncontroverted, thatEdison violated the statute and that its violation was a proximate cause of his fall and injuries (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 289 [2003]; Arey v M. Dunn, Inc., 29 AD3d at1138-1139; Johnson v Packaging Corp. of Am., 274 AD2d at 628; Nephew vBarcomb, 260 AD2d at 823).
Edison's contention that plaintiff's carelessness may have contributed to this fall isunsupported and, more importantly, a worker's contributory negligence is irrelevant to LaborLaw § 240 (1) liability and insufficient to defeat summary judgment (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d at 287; Stolt v General FoodsCorp., 81 NY2d 918, 920 [1993]; Arey v M. Dunn, Inc., 29 AD3d at 1139; Morin v Machnick Bldrs., 4 AD3d668, 670 [2004]; Clark v Fox Meadow Bldrs., 214 AD2d at 884). Further, Edisonsubmitted no evidence that plaintiff's conduct was solely to blame for the fall (cf. Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d at 290-291; Weininger v Hagedorn &Co., 91 NY2d 958, 960 [1998]) or that plaintiff was recalcitrant in deliberately refusing touse available safety devices (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563[1993]; Hagins v State of New York, 81 NY2d 921, 922-923 [1993]; Powers v DelZotto & Son Bldrs., 266 AD2d 668, 669-671 [1999]; cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40[2004]; Danton v Van Valkenburg,13 AD3d 931, 932 [2004]).
Also unavailing is Edison's effort to rely on its alleged compliance with Occupational Safetyand Health Act (hereinafter OSHA) regulations to create a question of fact as to whether itsfailure to provide protective devices violated Labor Law § 240 (1). The cited OSHAprovision applies to employers, not owners such as Edison (see 29 CFR 1926.501 [a] [1];Millard v City of Ogdensburg, 274 AD2d 953, 954 [2000]; see also Valensisi v Greens at Half Hollow,LLC, 33 AD3d 693, 694-695 [2006]). Also, Labor Law § 240 (1) "contain[s] itsown specific safety measures" (Long v Forest-Fehlhaber, 55 NY2d 154, 160 [1982]) and,thus, an owner's asserted compliance with OSHA regulations does not defeat plaintiff's primafacie showing.
Finally, we discern no abuse of discretion in Supreme Court's decision to grant plaintiffpartial summary judgment on his Labor Law § 240 (1) claim without providing Edisonwith additional time within which to complete discovery (see CPLR 3212 [f]). Edisonoffered no explanation for its failure to depose plaintiff during the 10 months since it filed itsanswer (see Steinborn v Himmel, 9AD3d 531, 535 [2004]; cf.Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 20 AD3d 805, 806 [2005]). Also, inopposition to plaintiff's motion, Edison submitted an affidavit of plaintiff's coworker whowitnessed his fall, undermining Edison's unsupported and speculative claim that plaintiff "mayhave exclusive knowledge of facts which may defeat his [*3]motion and claims in general" (see Steinborn v Himmel, 9AD3d at 535; Oliveira v County ofBroome, 5 AD3d 898, 899 [2004]). Given Edison's inadequate showing, the grant ofsummary judgment to plaintiff was not premature.
Peters, J.P., Rose, Kane and Stein, JJ., concur. Ordered that the order is affirmed, with costs.