| Intelisano v Sam Greco Constr., Inc. |
| 2009 NY Slip Op 09130 [68 AD3d 1321] |
| December 10, 2009 |
| Appellate Division, Third Department |
| Joseph Intelisano, Respondent, v Sam Greco Construction, Inc., etal., Appellants. |
—[*1] Martin, Harding & Mazzotti, L.L.P., Albany (Rosemarie R. Bogdan of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered August 21, 2008in Saratoga County, which, among other things, granted plaintiff's cross motion for partialsummary judgment on the issue of liability pursuant to Labor Law § 240 (1).
Plaintiff was employed by a roofing subcontractor working on a construction project. He wasassigned to assist in unloading bundles of insulation from a flatbed trailer. To do this, he wasrequired to get on top of the bundles and attach a strap around them to a crane. Because noladder or scaffold was provided, to get on top of the bundles, which were 10 feet high andstacked on the flatbed which was four feet above the ground, plaintiff climbed up on the sparetire attached between the trailer and truck cab. Once atop the spare tire, he grabbed the top of theshrink-wrapped bundle of insulation with both hands, pulled himself up as if doing a chin-up,and swung his leg to the side to get his entire body on top of the bundles. As he swung his leg tothe side, his hands slipped, causing him to fall to the ground and break his heel.
To recover for his injuries, plaintiff commenced this action against the owner of the propertyand general contractor, alleging common-law negligence and violations of Labor Law§§ 200, 240 (1) and § 241 (6). Defendants moved for summary judgmentdismissing the complaint. Plaintiff cross-moved for summary judgment on the issue of liabilityunder Labor Law § 240 (1). Supreme Court granted plaintiff's cross motion, denied theportions of defendants' motion pertaining to Labor Law § 240 (1) and § 241 (6), butpartially granted [*2]defendants' motion by dismissing the causesof action alleging common-law negligence and violations of Labor Law § 200. Defendantsappeal.
Supreme Court properly granted summary judgment in plaintiff's favor on the issue ofdefendants' liability under Labor Law § 240 (1). To prevail on that cause of action,plaintiff was required to show that defendants violated the statute and the violation was aproximate cause of his accident (seeBlake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Cody v State of New York, 52 AD3d930, 931 [2008]). While falling from the bed of a truck is not the kind of elevation-relatedhazard contemplated by the statute (seeToefer v Long Is. R.R., 4 NY3d 399, 408 [2005]; Lavore v Kir Munsey Park 020, LLC, 40 AD3d 711, 712 [2007],lv denied 10 NY3d 701 [2008]; Amantia v Barden & Robeson Corp., 38 AD3d 1167, 1168[2007]), Labor Law § 240 (1) can be applied where some risk-enhancing circumstanceimplicates the protections of the statute (see Berg v Albany Ladder Co., Inc., 40 AD3d 1282, 1284 [2007],affd 10 NY3d 902 [2008]). Plaintiff was hanging from the 10-foot-high stack ofinsulation bundles, with his hands 14 feet above the ground, and was trying to swing his body tothat height when he fell. These circumstances constitute an elevation-related risk greater thanmerely falling from the bed of a trailer (see Ford v HRH Constr. Corp., 41 AD3d 639, 640-641 [2007];Monroe v Bardin, 249 AD2d 650, 652 [1998]; compare Berg v Albany Ladder Co.,Inc., 40 AD3d at 1284-1285). As no safety devices were provided to assist plaintiff inreaching the insulation or prevent him from falling from a height, and such devices could haveprevented plaintiff's accident, defendants violated the statute and that violation constituted aproximate cause of the accident.[FN*]Thus, plaintiff was entitled to summary judgment on the issue of liability under Labor Law§ 240 (1).
Because 12 NYCRR 23-1.7 (f) mandates specific conduct and may have been violated hereby defendants' failure to provide plaintiff with a ladder, Supreme Court properly denied that partof defendants' motion seeking summary judgment on his Labor Law § 241 (6) cause ofaction (see Seepersaud v City of NewYork, 38 AD3d 753, 755 [2007]; Gonzalez v Pon Lin Realty Corp., 34 AD3d 638, 639 [2006];Betke v Archwood Estates, 261 AD2d 427, 428 [1999]).
Peters, J.P., Stein and Garry, JJ., concur. Ordered that the order is affirmed, with costs.
Footnote *: We reject defendants' argumentthat plaintiff's actions were the sole proximate cause of the accident. The assertion that heintentionally jumped from the top of the insulation bundles is based upon speculation andmisconstrues the deposition testimony of a person who did not actually witness the accident (compare Danton v Van Valkenburg,13 AD3d 931, 932 [2004]).