| Forschner v Jucca Co. |
| 2009 NY Slip Op 05289 [63 AD3d 996] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Arthur Forschner et al., Appellants-Respondents, v JuccaCompany et al., Respondents-Appellants. (And a Third-PartyAction.) |
—[*1] Keane & Beane, P.C. (Mauro Goldberg & Lilling LLP, Great Neck, N.Y. [Kenneth Mauro],of counsel), for respondents-appellants.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), datedMarch 13, 2008, as denied that branch of their motion which was for summary judgment on theissue of liability on the cause of action alleging violations of Labor Law § 240 (1) insofaras asserted against the defendants Jucca Company, a partnership, Frank Castagna, CastagnaRealty Co., Inc., and granted that branch of the defendants' cross motion which was for summaryjudgment dismissing the cause of action alleging violations of Labor Law § 241 (6) insofaras asserted against those defendants, and the defendants Jucca Company, a partnership, FrankCastagna, and Castagna Realty Co., Inc., Rita Castagna, Catherine Castagna LaBianca, andRobert Ronzoni cross-appeal, as limited by their notice of appeal and brief, from so much of thesame order as denied that branch of their cross motion which was for summary judgmentdismissing the cause of action alleging violations of Labor Law § 240 (1) insofar asasserted against the defendants Jucca Company, a partnership, Frank Castagna, and CastagnaRealty Co., Inc.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The plaintiff Arthur Forschner (hereinafter the injured plaintiff) was employed by thethird-party defendant RJW Contracting and Remodeling, a company retained by the defendantsto perform framing work on a house that was under construction. While working at the job siteinstalling joists in tandem with a coworker, the injured plaintiff ascended a ladder provided tohim to gain access to and work atop a 4½-inch-wide beam. After the injured plaintiffascended the ladder to the beam, the ladder was taken by other workers at the site for useelsewhere. While kneeling on the beam, a joist gave way under the pressure of the injuredplaintiff's left hand, causing him to fall nine feet to the ground.
Labor Law § 240 (1) provides, in pertinent part, that "[a]ll contractors and owners andtheir agents . . . in the erection, demolition, repairing, altering, painting, cleaning orpointing of a [*2]building or structure shall furnish or erect, orcause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays,ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be soconstructed, placed and operated as to give proper protection to a person so employed."
"In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff mustestablish that the statute was violated and that the violation was a proximate cause of his or herinjuries" (Rudnik v Brogor Realty Corp., 45 AD3d 828, 829 [2007]; see Cahill vTriborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous.Servs. of N.Y. City, 1 NY3d 280 [2003]). Labor Law § 240 (1) "creates a liability thatis strict, or absolute, in two senses: the duty it imposes is nondelegable, and thus contractors andowners are liable under the statute whether or not they supervise or control the work; and wherean accident is caused by a violation of the statute, the plaintiff's own negligence does not furnisha defense" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 39). There is noliability "where a plaintiff's own actions are the sole proximate cause of the accident"(id.).
Although the plaintiffs established that, at the time of the accident, the injured plaintiff wasengaged in an elevation-related activity specifically protected by Labor Law § 240 (1),they did not establish as a matter of law that the failure of the defendants Jucca Company, apartnership, Frank Castagna, and Castagna Realty Co., Inc. (hereinafter the owners and generalcontractors), to provide him with any safety devices proximately caused his injuries. Rather,there are issues of fact as to whether the injured plaintiff was provided with any safety deviceand, if so, whether the device was an appropriate device, whether he used, or would havecontinued to use, that safety device, and whether he voluntarily surrendered that safety device.Hence, "it cannot be concluded, as a matter of law, that the defendants failed to provide theplaintiff with proper protection or that any alleged failure to provide and properly place adequatesafety devices proximately caused his injuries" (Artoglou v Gene Scappy Realty Corp.,57 AD3d 460, 461 [2008]). Under these circumstances, the Supreme Court properly denied thatbranch of the plaintiffs' motion which was for summary judgment on the issue of liability on theLabor Law § 240 (1) cause of action insofar as asserted against the owners and generalcontractors (see Hanvey v Falke's Quarry, Inc., 50 AD3d 1237, 1238 [2008]; Clark v345 E. 52nd St. Owners, 245 AD2d 410, 412 [1997]; Vona v St. Peter's Hosp. of City ofAlbany, 223 AD2d 903, 905 [1996]). Given the existence of these issues of fact, theSupreme Court also properly denied that branch of the defendants' cross motion which was forsummary judgment dismissing the Labor Law § 240 (1) cause of action insofar as assertedagainst the owners and general contractors.
Labor Law § 241 (6) imposes a "nondelegable duty . . . uponowners and contractors 'to provide reasonable and adequate protection and safety to[construction workers]' " (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998];see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]; Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Dickson v FantisFoods, 235 AD2d 452 [1997]). To recover on a cause of action alleging a violation LaborLaw § 241 (6), a plaintiff must establish the violation of an Industrial Code provisionwhich sets forth specific safety standards (see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d at 503-505). The rule or regulation alleged to have been breached must be a specific,positive command and be applicable to the facts of the case (see Rizzuto v L.A. WengerContr. Co., 91 NY2d at 349).
"The regulations set forth at 12 NYCRR 23-1.15, 23-1.16, and 23-1.17, which set standardsfor safety railings, safety belts, and life nets, respectively, are inapplicable here because theplaintiff was not provided with any such devices" (Kwang Ho Kim v D & W Shin RealtyCorp., 47 AD3d 616, 619 [2008]; see Dzieran v 1800 Boston Rd., LLC, 25 AD3d336, 337 [2006]; see also Rau v Bagels N Brunch, Inc., 57 AD3d 866, 868 [2008]). Inaddition, 12 NYCRR 23-1.7 (b) (1) is not applicable to the facts of this case, as that regulationapplies to safety devices for hazardous openings, and not to an elevated hazard (see 12NYCRR 23-1.7 [b] [1]; Rau v Bagels N Brunch, Inc., 57 AD3d at 868; Kwang HoKim v D & W Shin Realty Corp., 47 AD3d at 619). In opposition, the plaintiff failed to raisea triable issue of fact. Accordingly, the Supreme Court properly granted that branch of thedefendants' cross motion which was for summary judgment dismissing the cause of action torecover damages based on a violation of Labor Law § 241 (6) insofar as asserted againstthe owners and general [*3]contractors. Fisher, J.P., Covello,Angiolillo and Leventhal, JJ., concur.