| Lovall v Graves Bros., Inc. |
| 2009 NY Slip Op 04473 [63 AD3d 1528] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Joanne Lovall, as Executor of Andrew R. Basch, Deceased,Respondent, v Graves Bros., Inc., et al., Appellants. (Appeal No. 1.) |
—[*1] Fitzsimmons, Nunn, Fitzsimmons & Plukas, LLP, Rochester (Jason Abbott of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (William P. Polito, J.), enteredJanuary 5, 2007 in a personal injury action. The order denied defendants' motion for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the common-law negligence cause of action and theLabor Law §§ 200 and 241 (6) claims except insofar as the latter claim is basedupon the alleged violation of 12 NYCRR 23-1.21 and as modified the order is affirmed withoutcosts.
Memorandum: Andrew R. Basch (decedent) commenced this Labor Law and common-lawnegligence action seeking damages for injuries he sustained when he fell from an extensionladder. Basch had placed that ladder on a pitched driveway to work on the front of a garage, andthe ladder "kicked out." We note that decedent died after these appeals were taken and thatplaintiff has been substituted as executor of his estate. In appeal No. 1, defendants contend thatSupreme Court erred in denying their motion for summary judgment dismissing the complaintand, in appeal No. 2, plaintiff contends that the court erred in denying decedent's motion forpartial summary judgment on liability with respect to the Labor Law § 240 (1) claim.
With respect to appeal No. 1, we conclude that the court properly denied that part ofdefendants' motion for summary judgment dismissing the Labor Law § 240 (1) claim. Tobe held liable pursuant to section 240 (1), "the owner or contractor must breach the statutoryduty . . . to provide a worker with adequate safety devices, and [that] breach mustproximately cause the worker's injuries" (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; see Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 39 [2004]). Where, however, the "actions [of the worker are] the soleproximate cause of his or her injuries . . . [,] liability under Labor Law § 240(1) [does] not attach" (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998],rearg denied 92 NY2d 875 [1998]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,290 [2003]). Thus, "if adequate safety devices are available at the job site, but the worker eitherdoes not use or misuses them," then the [*2]owner or contractorwill not be held liable pursuant to Labor Law § 240 (1) (Robinson, 6 NY3d at 554;see Gallagher v New York Post, 55AD3d 488, 490 [2008]).
Here, defendants established in support of their motion that the stepladders and planksnecessary to erect the scaffolding for decedent to access the garage were available to him.Defendants submitted the deposition testimony of decedent's supervisor in which he testified thathe instructed decedent to use the scaffolding rather than the extension ladder because of thepitched driveway and that the scaffolding would have been secure because it would be placedcloser to the garage, where the ground was level. In addition, however, defendants submitted thedeposition testimony of decedent stating that he was never told to use the scaffolding rather thanthe extension ladder. Thus, by their own submissions, defendants raised a triable issue of factwhether decedent knew that he should have used the scaffolding to access the garage but chosenot to do so, and they therefore failed to establish their entitlement to judgment as a matter oflaw (cf. Cahill, 4 NY3d at 40).
The court also properly denied that part of defendants' motion for summary judgmentdismissing the Labor Law § 241 (6) claim insofar as it is based upon the alleged violationof 12 NYCRR 23-1.21. Defendants failed to meet their initial burden inasmuch as they failed toestablish that the regulation is not applicable to the facts of the case, that they did not violate it,or that the alleged violation was not a proximate cause of decedent's injuries (see Whalen v ExxonMobil Oil Corp.,50 AD3d 1553, 1554 [2008]). We conclude, however, that the Labor Law § 241 (6)claim with respect to the remaining Industrial Code sections set forth in the bill of particulars hasbeen abandoned, and thus the Labor Law § 241 (6) claim should be dismissed exceptinsofar as it is based upon the alleged violation of 12 NYCRR 23-1.21 (see Roosa v Cornell Real Prop. Servicing,Inc., 38 AD3d 1352, 1354 [2007]; Smith v Le Frois Dev., LLC, 28 AD3d 1133, 1134 [2006];Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). We therefore modify the order inappeal No. 1 accordingly.
The court also erred in denying those parts of defendants' motion with respect to the LaborLaw § 200 claim and common-law negligence cause of action, and we therefore furthermodify the order in appeal No. 1 accordingly. "Defendants established that they exercised nocontrol over the manner or method of [decedent's] work," and decedent failed to raise a triableissue in opposition to the motion (Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426,1428 [2007]; see Brunette v TimeWarner Entertainment Co., L.P., 32 AD3d 1170 [2006]; see generally Comes v NewYork State Elec. & Gas Corp., 82 NY2d 876, 877-878 [1993]).
With respect to the order in appeal No. 2, we conclude that the court properly denieddecedent's motion seeking partial summary judgment on liability with respect to the Labor Law§ 240 (1) claim. Decedent failed to meet his initial burden of establishing that his actionswere not the sole proximate cause of the accident inasmuch as he submitted the depositiontestimony of his employer indicating that he was instructed to use the scaffolding (seeGallagher, 55 AD3d at 490; cf.Baker v Essex Homes of W. N.Y., Inc., 55 AD3d 1332 [2008]).Present—Martoche, J.P., Smith, Centra, Fahey and Pine, JJ.