| Ortiz v 164 Atl. Ave., LLC |
| 2010 NY Slip Op 07521 [77 AD3d 807] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Renato Ortiz, Appellant, v 164 Atlantic Avenue, LLC, etal., Defendants Third-Party Plaintiffs-Respondents, and One Main Street Construction Corp.,Respondent. Dino's Sheetrock Corp., Third-Party Defendant-Respondent. (And a SecondThird-Party Action.) |
—[*1] Greenfield & Ruhl, Uniondale, N.Y. (Brian J. Greenfield and Scott L. Mathias of counsel), for defendantsthird-party plaintiffs-respondents. Silverman Sclar Shin & Bryne, PLLC, New York, N.Y. (Vincent Chirico of counsel), fordefendant-respondent. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Martin, J.), dated September 2, 2009, which denied hismotion for summary judgment on the issue of liability on his causes of action alleging violationsof Labor Law § 240 (1) and § 241 (6), based on an alleged violation of IndustrialCode (12 NYCRR) § 23-1.7 (b) (1).
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate briefs, and the plaintiff's motion forsummary judgment on the issue of liability on his causes of action alleging violations of LaborLaw § 240 (1) and § 241 (6), based on an alleged violation of Industrial Code (12NYCRR) § 23-1.7 (b) (1), is granted.
This action arises from a construction site accident that occurred on January 4, 2006, at abuilding owned by the defendant 164 Atlantic Avenue, LLC (hereinafter 164 Atlantic), when theplaintiff, a carpenter employed by the third-party defendant, Dino's Sheetrock Corp. (hereinafterDino's), fell from a seven-foot high metal scaffold while attempting to dislodge a ceiling pipewith a hammer. After the plaintiff's initial fall from the scaffold, he continued to fall into anunprotected three-by-four feet "hole" in the temporary plywood floor, landing in the basementand sustaining injuries.
In 2007, the plaintiff commenced this action to recover damages for his personal injuriesagainst the general contractor, which was the defendant One Main Street Construction Corp., themanager for the renovation project, which was the defendant Two Trees Management Co., LLC(hereinafter Two Trees), and 164 Atlantic (hereinafter collectively the defendants), allegingcommon-law negligence and violations of Labor Law §§ 200, 240 (1) and §241 (6). The defendants, [*2]in turn, commenced third-partyactions against Dino's, seeking, inter alia, contribution and contractual and common-lawindemnification.
Following the conclusion of discovery, the plaintiff moved for summary judgment on theissue of liability on his causes of action alleging violations of Labor Law § 240 (1) as wellas section 241 (6), based on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(b) (1). The defendants contended that the evidence raised issues of fact as to whether, inter alia,the plaintiff's alleged conduct was the sole proximate cause of his injuries. The Supreme Courtdenied his motion, and we reverse.
"Labor Law § 240 (1) imposes absolute liability on owners, contractors and agents fortheir failure to provide workers with safety devices that properly protect against elevation-relatedspecial hazards. Breach of the statutory duty must be the proximate cause of the injury. Thestatute is to be interpreted liberally to accomplish its purpose" (Striegel v Hillcrest Hgts. Dev.Corp., 100 NY2d 974, 977 [2003]; see Rocovich v Consolidated Edison Co., 78NY2d 509, 512-514 [1991]; Zimmer v Chemung County Performing Arts, 65 NY2d 513,514 [1985]). In order to prevail on a Labor Law § 240 (1) claim, the plaintiff mustestablish a violation of the statute and that the violation was a proximate cause of his or herinjuries (see Blake v NeighborhoodHous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003]; Smith v Cari, LLC, 50 AD3d 879, 880 [2008]; Norwood v Whiting-Turner Contr. Co.,40 AD3d 718 [2007]; Valensisi vGreens at Half Hollow, LLC, 33 AD3d 693, 695 [2006]).
Applying these principles to the matter at bar, the Supreme Court erred in denying theplaintiff's motion for summary judgment on the issue of liability pursuant to Labor Law §240 (1). The plaintiff met his prima facie burden with evidence that he was not provided with anadequate safety device (see Angamarcav New York City Partnership Hous. Dev. Fund Co., Inc., 56 AD3d 264, 265 [2008]; Dooley v Peerless Importers, Inc., 42AD3d 199, 204 [2007]), and that such Labor Law § 240 (1) violation was a proximatecause of his accident (see Grigoropoulosv Moshopoulos, 44 AD3d 1003, 1004 [2007]; Crespo v Triad, Inc., 294 AD2d145, 146-147 [2002]; Robertti v Powers Chang, 227 AD2d 542, 543 [1996];Richardson v Matarese, 206 AD2d 353 [1994]; Clute v Ellis Hosp., 184 AD2d942, 944 [1992]).
In opposition, the defendants failed to raise a triable issue of fact as to the existence of aLabor Law § 240 (1) violation or whether the plaintiff's alleged actions were the soleproximate cause of his accident (seeTapia v Mario Genovesi & Sons, Inc., 72 AD3d 800, 801 [2010]; Valensisi v Greensat Half Hollow, LLC, 33 AD3d at 695-696). Contrary to the defendants' contention, therecord does not support a finding that the plaintiff was a recalcitrant worker. It is undisputed thatthe defendants failed to furnish the plaintiff with certain safety devices, or to provide him with"immediate specific instructions to use an actually available safety device or to avoid using aparticular unsafe device" (Walls vTurner Constr. Co., 10 AD3d 261, 262 [2004], affd on other grounds 4 NY3d861, 862 [2005]; see Zong Mou Zou vHai Ming Constr. Corp., 74 AD3d 800 [2010]; Santo v Scro, 43 AD3d 897, 898-899 [2007]; cf. Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 39-40 [2004]). Moreover, " '[t]he availability of a particular safetydevice will not shield an owner or general contractor from absolute liability if the device alone isnot sufficient to provide safety without the use of additional precautionary devices or measures' "(Nimirovski v Vornado Realty TrustCo., 29 AD3d 762, 762 [2006], quoting Conway v New York State Teachers'Retirement Sys., 141 AD2d 957, 958-959 [1988]).
The plaintiff's cause of action to recover damages pursuant to Labor Law § 241 (6) ispremised on a violation of Industrial Code (12 NYCRR) § 23-1.7 (b) (1), which mandatesthat holes or "hazardous openings" at construction sites "into which a person may step or fall" be"guarded by a substantial cover fastened in place or by [the installation of] a safety railing"(see Keegan v Swissotel N.Y., 262 AD2d 111, 114 [1999]). Here, the plaintiffestablished prima facie that, when he fell from the scaffold, he fell through an unprotected holeor opening in the temporary plywood floor, constituting "an elevator shaft," which had not beenproperly covered (see Uluturk v City of New York, 298 AD2d 233 [2002]; Gottstinev Dunlop Tire Corp., 272 AD2d 863, 864-865 [2000]). In opposition, the defendants failedto demonstrate that the cited regulation is inapplicable to the extant circumstances, or that itsviolation was not the proximate cause of the plaintiff's accident (see Treu v Cappelletti, 71 AD3d994 [2010]; Smith v Cari, LLC, 50 AD3d at 881; Guerra v Port Auth. of N.Y. & N.J., 35 AD3d 810, 811 [2006]; cf. Rookwood v Hyde Park OwnersCorp., 48 AD3d 779, 781 [2008]).
Accordingly, the Supreme Court should have granted the plaintiff's motion for summaryjudgment on the issue of liability on the causes of action alleging violations of Labor Law[*3]§ 240 (1) as well as Labor Law § 241 (6), based on aviolation of Industrial Code (12 NYCRR) § 23-1.7 (b) (1). Santucci, J.P., Balkin, Belenand Chambers, JJ., concur.