| Martinez v Ashley Apts Co., LLC |
| 2011 NY Slip Op 00491 [80 AD3d 734] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Maria Martinez, as Executor of Victor Martinez, Deceased,Appellant-Respondent, v Ashley Apts Co., LLC, et al., Defendants/Third-PartyPlaintiffs-Respondents. P & G Construction Corp., Third-PartyDefendant-Respondent-Appellant. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel),for defendants/third-party plaintiffs-respondents. Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Patrick J. Engle of counsel), forthird-party defendant-respondent-appellant. Kenneth Arthur Rigby, PLLC, New York, N.Y., for Chartis Insurance Company, workers'compensation carrier for third-party defendant P & G Construction Corp.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated October8, 2009, as denied her motion for summary judgment on the issue of liability with respect to hercause of action alleging a violation of Labor Law § 240 (1), and granted those branches ofthe respective cross motions of the defendants/third-party plaintiffs and the third-party defendantwhich were for summary judgment dismissing the cause of action alleging a violation of LaborLaw § 240 (1), and the third-party defendant cross-appeals, as limited by its brief, from somuch of the same order as granted that branch of its cross motion which was for summaryjudgment dismissing the third-party cause of action for contractual indemnification.
Ordered that the cross appeal by the third-party defendant is dismissed, as the third-partydefendant is not aggrieved by the order cross-appealed from (see CPLR 5511); and it isfurther,
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the respective cross motions of the defendants/third-party plaintiffs and thethird-party defendant which were for summary judgment dismissing the plaintiff's cause of actionalleging a violation of Labor Law § 240 (1), and substituting therefor provisions denyingthose branches of the cross motions; as so modified, the order is affirmed insofar as reviewed,without costs or disbursements.
The complaint alleges that the plaintiff's decedent fell from a scaffold while working at abuilding owned by the defendant/third-party plaintiff Ashley Apts Co., LLC, and managed by[*2]the defendant/third-party plaintiff, M & R Management Co.,Inc. (hereinafter together Ashley). The plaintiff maintained, inter alia, that the scaffold fromwhich the decedent fell failed to provide him with proper protection within the meaning of LaborLaw § 240 (1) since it was missing a center safety rail. Subsequently, Ashley commenced athird-party action against the decedent's employer, P & G Construction Corp. (hereinafter P &G), seeking, among other things, contractual and common-law indemnification.
As relevant here, the Supreme Court denied the plaintiff's motion for summary judgment onthe issue of liability pursuant to Labor Law § 240 (1), and granted those branches of therespective cross motions of Ashley and P & G which were for summary judgment dismissing somuch of the complaint as alleged a violation of Labor Law § 240 (1). The Supreme Courtdetermined that the decedent's failure to wear an available safety harness was the sole proximatecause of the accident. We modify.
"Labor Law § 240 (1) imposes a nondelegable duty upon owners, contractors, or theiragents to provide proper protection to a worker performing certain types of construction work"(Aversano v JWH Contr., LLC, 37AD3d 745, 746 [2007]; see Leniar vMetropolitan Tr. Auth., 37 AD3d 425, 426 [2007]). To prevail on a Labor Law §240 (1) cause of action, a plaintiff must establish that the statute was violated and that theviolation was a proximate cause of his or her injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,287 [2003]; Singh v City of NewYork, 68 AD3d 1095, 1096 [2009]; Tama v Gargiulo Bros., Inc., 61 AD3d 958, 960 [2009])."However, a fall from a scaffold does not establish, in and of itself, that proper protection wasnot provided, and the issue of whether a particular safety device provided proper protection isgenerally a question of fact for the jury" (Alava v City of New York, 246 AD2d 614, 615[1998] [citations omitted]).
Here, in support of the branches of their respective motion and cross motions which were forsummary judgment with respect to the Labor Law § 240 (1) cause of action, neither theplaintiff, Ashley, nor P & G established their prima facie entitlement to judgment as a matter oflaw (see Andro v City of New York,62 AD3d 919, 919-920 [2009]; Bonilla v State of New York, 40 AD3d 673, 675 [2007]). Theparties' submissions raised triable issues of fact as to whether the scaffold provided properprotection within the meaning of Labor Law § 240 (1) and, if not, whether this was aproximate cause of the decedent's fall (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,287 [2003]; Alesius v Good SamaritanHosp. Med. & Dialysis Ctr., 6 AD3d 470, 471 [2004]). In addition, a triable issue of factexists as to whether the decedent's conduct was the sole proximate cause of the accident (seeWoods v Gonzales, 295 AD2d 602, 603 [2002]). Skelos, J.P., Balkin, Leventhal and Sgroi,JJ., concur.