| Balzer v City of New York |
| 2009 NY Slip Op 03111 [61 AD3d 796] |
| April 21, 2009 |
| Appellate Division, Second Department |
| John H. Balzer, Respondent, v City of New York et al.,Defendants, and Tully Construction Company, Inc., et al., Defendants and Third-PartyPlaintiffs-Appellants. Cornell & Company, Inc., Third-PartyDefendant-Appellant. |
—[*1] Fiedelman & McGaw, Jericho, N.Y. (Ross P. Masler of counsel), for third-partydefendant-appellant. Fortunato & Fortunato, PLLC (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [BrianJ. Isaac and Diane K. Toner], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants and third-partyplaintiffs appeal, and the third-party defendant separately appeals, as limited by their respectivebriefs, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), enteredJanuary 28, 2008, as granted the plaintiff's motion for summary judgment on the issue of liabilityon his claims pursuant to Labor Law § 240 (1).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellants appearing separately and filing separate briefs.
On September 13, 2004, the plaintiff, an ironworker employed by the third-party defendant,was injured while working at a construction site involving rehabilitation of the WhitestoneExpressway. The plaintiff was part of a crew bolting lateral bracing to road beams on an elevatedroadway under construction. He was wearing a safety harness and lanyard that could be attachedto [*2]either a safety cable or another stationary object. It isundisputed that there were no safety cables in the plaintiff's work area. As a consequence, theplaintiff tied his lanyard around a steel "cross bracing stiffener" which he believed was stationarysince he could see that each end was bolted to the beam to which it was attached. However,when his coworkers began operating a hydraulic jack, the "cross bracing stiffener" moved, oneend became detached from the beam to which it was attached, the plaintiff's lanyard slipped off,and he fell approximately 15 feet to the ground, fracturing his pelvis.
The plaintiff commenced this action against, among others, the general contractors on theproject, seeking damages, inter alia, for a violation of Labor Law § 240 (1). The generalcontractors impleaded his employer. After discovery was completed, the plaintiff moved forsummary judgment as to liability on his claims pursuant to Labor Law § 240 (1). Thegeneral contractors and the plaintiff's employer (hereinafter together the appellants) opposed themotion. The Supreme Court granted the motion and we affirm.
Labor Law § 240 (1) imposes liability upon owners and contractors who violate thestatute by failing to provide or erect safety devices necessary to give proper protection toworkers exposed to elevation-related hazards, where such failure constitutes a proximate causeof the accident (see Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490-491 [1995];Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]; Rocovich vConsolidated Edison Co., 78 NY2d 509, 513 [1991]). It is not a defense to liability pursuantto Labor Law § 240 (1) that the plaintiff's fault contributed to the accident, unless it can besaid that the plaintiff's conduct was the sole proximate cause of the accident as a matter of law(see Cahill v Triborough Bridge &Tunnel Auth., 4 NY3d 35, 39 [2004]; Chlebowski v Esber, 58 AD3d 662 [2009]).
"The burden of showing that an elevation-related risk exists, and that the owner or contractordid not provide adequate safety devices, falls upon the plaintiff" (Broggy v Rockefeller Group, Inc., 8NY3d 675, 681 [2007]). In the instant case, the plaintiff established his entitlement tojudgment as a matter of law by establishing that he used a body harness and lanyard that wereprovided to him, but since no safety cable was provided, he attempted to attach the lanyard towhat appeared to be a stationary object (see Bonilla v State of New York, 40 AD3d 673 [2007]). Althoughthe fact that the object was not as stationary as it appeared might be evidence that the plaintiffwas partially at fault for the happening of the accident, that is not a defense to liability underLabor Law § 240 (1) (seeChlebowski v Esber, 58 AD3d 662 [2009]).
The plaintiff established, prima facie, that he did not violate any instruction to use safetyequipment (see Cahill v TriboroughBridge & Tunnel Auth., 4 NY3d 35 [2004]), and that he was not instructed to use any ofthe stationary objects which the appellants, with the benefit of hindsight, claim he should haveused instead of the "cross bracing stiffener" (see Palacios v Lake Carmel Fire Dept., Inc., 15 AD3d 461 [2005]).In response to the plaintiff's prima facie showing of entitlement to judgment as a matter of law,the appellants failed to raise a triable issue of fact.
The appellants' remaining contentions are without merit, or need not be reached in light ofour determination. Mastro, J.P., Dillon, Leventhal and Chambers, JJ., concur.