| Treu v Cappelletti |
| 2010 NY Slip Op 02545 [71 AD3d 994] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Patrick G. Treu, Appellant-Respondent, v Richard R.Cappelletti, Jr., Individually and Doing Business as Cappelletti Remodeling and Renovations,Respondent-Appellant. (And a Third-Party.) |
—[*1] James W. Borkowski, White Plains, N.Y., for respondent-appellant.
In an action to recover damages for personal injuries, (1) the plaintiff appeals, as limited byhis brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), datedSeptember 3, 2008, as granted those branches of the motion of the defendant Richard R.Cappelletti, Jr., individually and doing business as Cappelletti Remodeling and Renovations,which were for summary judgment dismissing the causes of action to recover damages forviolations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against him, anddenied those branches of his cross motion which were for summary judgment on the issue ofliability on those causes of action, (2) the defendant Richard R. Cappelletti, Jr., individually anddoing business as Cappelletti Remodeling and Renovations, appeals, as limited by his notice ofappeal and brief, from so much of an order of the same court dated December 15, 2008, as, uponreargument, vacated the determination in the order dated September 3, 2008, granting thosebranches of his motion which were for summary judgment dismissing the causes of action torecover damages for violations of Labor Law § 240 (1) and § 241 (6) insofar asasserted against him, and thereupon denied those branches of his motion, and (3) the plaintiffappeals, as limited by his brief, from so much of an order of the same court entered March 30,2009, as, upon reargument, adhered to the determination in the order dated September 3, 2008,denying those branches of his cross motion which were for summary judgment on the issue ofliability on the causes of action to recover damages for violations of Labor Law § 240 (1)and § 241 (6), vacated the determination in the order dated December 15, 2008, uponreargument, denying those branches of the motion of the defendant Richard R. Cappelletti, Jr.,individually and doing business as Cappelletti Remodeling and Renovations, which were forsummary judgment dismissing those causes of action insofar as asserted against that defendant,and thereupon granted those branches of the motion of that defendant.
Ordered that the appeal from so much of the order dated September 3, 2008, as granted thosebranches of the motion of the defendant Richard R. Cappelletti, individually and doing businessas Cappelletti Remodeling and Renovations, which were for summary judgment dismissing thecauses of action to recover damages for violations of Labor Law § 240 (1) and §241 (6) insofar as asserted against him is dismissed, without costs or disbursements, as thatportion of the order was superseded by [*2]the order datedDecember 15, 2008, made upon reargument; and it is further,
Ordered that the appeal from so much of the order dated September 3, 2008, as denied thosebranches of the plaintiff's cross motion which were for summary judgment on the issue ofliability on the causes of action to recover damages for violations of Labor Law § 240 (1)and § 241 (6) is dismissed, as that portion of the order was superseded by the order enteredMarch 30, 2009, made upon reargument; and it is further,
Ordered that the appeal from the order dated December 15, 2008, is dismissed, without costsor disbursements, as that order was superseded by the order entered March 30, 2009, made uponreargument; and it is further,
Ordered that the order entered March 30, 2009, is modified, on the law, (1) by deleting theprovision thereof, upon reargument, vacating the determination in the order dated December 15,2008, denying those branches of the motion of the defendant Richard R. Cappelletti, Jr.,individually and doing business as Cappelletti Remodeling and Renovations, which were forsummary judgment dismissing the causes of action to recover damages for violations of LaborLaw § 240 (1) and § 241 (6) insofar as asserted against him and thereupon grantingthose branches of the motion, and substituting therefor a provision, upon reargument, adhering tothe determination in the order dated December 15, 2008, denying those branches of the motion,and (2) by deleting the provision thereof, upon reargument, adhering to the determination in theorder dated September 3, 2008, denying that branch of the plaintiff's cross motion which was forsummary judgment on the issue of liability on the cause of action to recover damages for aviolation of Labor Law § 240 (1), and substituting therefor a provision, upon reargument,vacating the determination in the order dated September 3, 2008, denying that branch of thecross motion and thereupon granting that branch of the cross motion; as so modified, the orderentered March 30, 2009, is affirmed insofar as appealed from, without costs or disbursements.
As the general contractor of the construction site where a single-family residence was beingbuilt, the defendant Richard R. Cappelletti, Jr., individually and doing business as CappellettiRemodeling and Renovations (hereinafter Cappelletti) hired the third-party defendant Pat TreuConstruction, Inc. (hereinafter PTCI), to perform certain roofing work. Pursuant to an oralagreement assented to by the plaintiff, Patrick G. Treu, in his capacity as the sole owner of PTCI,PTCI was obligated to provide all materials and equipment necessary to complete the work.
On the day of the accident that is the subject of this action, an employee of PTCI erected ascaffold constructed of two lean-to ladders, two ladder brackets attached to the rungs of eachladder, and a wooden plank laid horizontally across the brackets. When leaned against a wall, thescaffolding loosely resembled an upper-case letter "H." The wooden plank was not secured to thebrackets, and the plank itself extended approximately four feet to the left beyond the left ladder.While standing on the plank, the plaintiff stepped onto the four-foot long section that projectedout past the left ladder, causing the plank to tip, and fell approximately eight to nine feet to theground, allegedly sustaining injuries.
The plaintiff commenced the instant action against Cappelletti, among others, alleging, interalia, violations of Labor Law § 240 (1) and § 241 (6). Cappelletti moved forsummary judgment dismissing the complaint insofar as asserted against him, arguing, amongother things, that the plaintiff's conduct was the sole proximate cause of his injuries. The plaintiffcross-moved, inter alia, for summary judgment on the issue of liability on the Labor Law §240 (1) and § 241 (6) causes of action. Upon reargument, the Supreme Court granted thosebranches of Cappelletti's motion which were for summary judgment dismissing the Labor Law§ 240 (1) and § 241 (6) causes of action, and adhered to a prior order denying thatbranch of the plaintiff's cross motion which was for summary judgment on the issue of liabilityon those causes of action. We modify.
"Labor Law § 240 (1) imposes a nondelegable duty upon owners and contractors toprovide or cause to be furnished certain safety devices for workers at an elevated work site, andthe absence of appropriate safety devices constitutes a violation of the statute as a matter of law"(Andino v BFC Partners, 303 AD2d 338, 339 [2003]). Generally, to succeed on a causeof action alleging a violation of Labor Law § 240 (1), a plaintiff must establish a violationof the statute and that such violation was a [*3]proximate causeof his or her resulting injuries (see Labor Law § 240 [1]; Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Plass v Solotoff,5 AD3d 365, 366 [2004]). Where there is no statutory violation, or where the plaintiff is the soleproximate cause of his or her own injuries, there can be no recovery under Labor Law §240 (1) (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 290).
Here, the plaintiff made a prima facie showing of his entitlement to judgment as a matter oflaw on the Labor Law § 240 (1) cause of action by demonstrating that his injuries wereproximately caused by Cappelletti's failure to satisfy his nondelegable obligation of providingsafe ladders or scaffolding for the elevation-related work at the construction site (see Morganv Neighborhood Partnership Hous. Dev. Fund Co., Inc., 50 AD3d 866 [2008]; Norwoodv Whiting-Turner Contr. Co., 40 AD3d 718 [2007]; Becerra v City of New York,261 AD2d 188, 189 [1999]). In opposition, Cappelletti failed to raise a triable issue of fact as towhether a statutory violation occurred, or whether the plaintiff's actions were the sole proximatecause of his own injuries (cf. Plass v Solotoff, 5 AD3d at 366-367; Heffernan v BaisCorp., 294 AD2d 401, 403 [2002]). Accordingly, summary judgment should have beenawarded to the plaintiff against Cappelletti on the issue of liability on the Labor Law § 240(1) cause of action.
Furthermore, Cappelletti failed to establish his prima facie entitlement to judgment as amatter of law dismissing the cause of action alleging a violation of Labor Law § 241 (6),which was predicated upon an alleged violation of 12 NYCRR 23-5.1 (c) (1) and (2). Theevidence submitted by Cappelletti failed to demonstrate the absence of a triable issue of fact asto whether the scaffolding provided was "so constructed as to bear four times the maximumweight required to be dependent therefrom or placed thereon when in use" (12 NYCRR 23-5.1[c] [1]), or furnished "adequate horizontal and diagonal bracing to prevent any lateralmovement" (12 NYCRR 23-5.1 [c] [2]). Moreover, Cappelletti failed to demonstrate that thecited provisions were inapplicable to the instant case, or that the alleged violations of the citedprovisions were not a proximate cause of the plaintiff's injuries (see Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494 [1993]; Abreo v URS Greiner Woodward Clyde, 60AD3d 878, 880-881 [2009]; Tomyuk v Junefield Assoc., 57 AD3d 518, 521 [2008]).While any comparative negligence on the part of the plaintiff may require an apportionment ofliability, such comparative negligence does not absolve Cappelletti of his own liability underLabor Law § 241 (6) (see Quinn v Whitehall Props., II, LLC, 69 AD3d 599[2010]; Keegan v Swissotel N.Y., 262 AD2d 111, 114 [1999]). Accordingly, theSupreme Court erred in granting that branch of Cappelletti's motion which was for summaryjudgment dismissing the Labor Law § 241 (6) cause of action.
Finally, the exclusivity provisions of the Workers' Compensation Law do not precluderecovery under Labor Law § 240 (1) and § 241 (6) as against Cappelletti (seeWorkers' Compensation Law § 11). Rivera, J.P., Angiolillo, Dickerson and Roman,JJ., concur.