| Salvagno v J.P. Spano & Co., Inc. |
| 2009 NY Slip Op 08803 [67 AD3d 986] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Anthony M. Salvagno, Jr., Respondent, v J.P. Spano andCompany, Inc., Defendant and Third-Party Plaintiff. Brian Fay Construction, Inc., Third-PartyDefendant-Appellant. |
—[*1] Edelman, Krasin & Jaye, PLLC (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [BrianJ. Isaac, Michael Zhu, and Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the third-party defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.),dated July 16, 2008, as denied that branch of its motion which was for summary judgmentdismissing the plaintiff's cause of action alleging a violation of Labor Law § 240 (1) andgranted that branch of the plaintiff's cross motion which was for summary judgment on the issueof liability on that cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was employed by the appellant, Brian Fay Construction, Inc., which had beenretained by the defendant third-party plaintiff, J.P. Spano and Company, Inc., the generalcontractor on a home construction project. On the day of the accident, the plaintiff, positioned atground level, was installing wooden boards on the underside of a deck. Another worker(hereinafter the coworker) was working on an unopened, A-frame ladder which was proppedagainst the side of the house and standing on an unsecured piece of plywood that had beenplaced over the exposed beams of the unfinished deck. The coworker was cutting overhangingpieces of wood with a generator-powered circular handsaw while the plaintiff worked belowhim. The piece of plywood upon which the closed A-frame ladder stood eventually "kicked out,"causing the ladder to slip. The coworker fell while holding onto the saw. The blade of the sawcontinued to spin and the plaintiff observed "the saw coming at [his] head." The plaintiff raisedhis hand and two of his fingers were almost completely severed by the saw. The plaintiff did notcome into contact with the coworker or the ladder. The Supreme Court denied that branch of theappellant's motion which was for summary judgment dismissing the Labor Law § 240 (1)cause of action and granted that branch of the plaintiff's cross motion which was for summaryjudgment on the issue of liability on that cause of action. We affirm.[*2]
Labor Law § 240 (1) provides that "[a]llcontractors and owners and their agents . . . in the erection . . . of abuilding or structure shall furnish or erect, or cause to be furnished or erected for theperformance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,braces, irons, ropes, and other devices which shall be so constructed, placed and operated as togive proper protection to a person so employed."
Contrary to the appellant's contention, theplaintiff's injury did not result "from a separate hazard wholly unrelated to the risk whichbrought about the need for the safety device in the first place" (Cohen v Memorial Sloan-Kettering CancerCtr., 11 NY3d 823, 825 [2008]; cf. Narducci v Manhasset Bay Assoc., 96 NY2d259, 267 [2001]). To the contrary, the injury occurred when the "protective device provedinadequate to shield the injured worker from harm directly flowing from the application of theforce of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d494, 501 [1993] [emphasis omitted]; seeBrown v VJB Constr. Corp., 50 AD3d 373, 376 [2008]), and the hazard presented herewas one contemplated in Labor Law § 240 (1) (see Striegel v Hillcrest Hgts. Dev.Corp., 100 NY2d 974, 978 [2003]; De Haen v Rockwood Sprinkler Co., 258 NY350, 353-354 [1932]; Cantineri vCarrere, 60 AD3d 1331, 1333 [2009]; Castillo v 62-25 30th Ave. Realty, LLC, 47 AD3d 865, 866[2008]; Kok Choy Yeen v NWECorp., 37 AD3d 547, 549 [2007]; Thompson v St. Charles Condominiums, 303AD2d 152, 153-154 [2003]; Jiron v China Buddhist Assn., 266 AD2d 347, 349 [1999];Smith v Jesus People, 113 AD2d 980, 983 [1985]; cf. Del Vecchio v State of NewYork, 246 AD2d 498, 498-499 [1998]; Bloomfield v General Elec. Co., 198 AD2d655, 657-658 [1993]).
Furthermore, the plaintiff's deposition testimony demonstrated that the statute was violated(see Preneta v North Castle, Inc.,65 AD3d 1027, 1027-1028 [2009]; Rico-Castro v Do & Co N.Y. Catering, Inc., 60 AD3d 749,749-750 [2009]; Mannes v Kamber Mgt., 284 AD2d 310, 311 [2001]), and that theviolation was a proximate cause of his injuries (see Gordon v Eastern Ry. Supply, 82NY2d 555, 562 [1993]; deSousa v Dayton T. Brown, Inc., 280 AD2d 447, 448 [2001];Mooney v PCM Dev. Co., 238 AD2d 487, 488 [1997]). The plaintiff thus established,prima facie, his entitlement to judgment as a matter of law on his Labor Law § 240 (1)cause of action (see Thompson v St. Charles Condominiums, 303 AD2d at 153). Inopposition, the appellant failed to submit evidence sufficient to raise a triable issue of fact (see Rudnik v Brogor Realty Corp., 45AD3d 828, 829 [2007]). Accordingly, the Supreme Court properly granted that branch ofthe plaintiff's cross motion which was for summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1) and denied that branch of theappellant's motion which was for summary judgment dismissing that cause action.
The appellant's remaining contention is without merit. Dillon, J.P., Florio, Balkin andLeventhal, JJ., concur.