| Quinteros v P. Deblasio, Inc. |
| 2011 NY Slip Op 01821 [82 AD3d 861] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Kevin Quinteros, Respondent, v P. Deblasio, Inc., et al.,Appellants. |
—[*1] Joseph J. Perrini III (Diamond and Diamond, LLC, New York, N.Y. [Stuart Diamond], ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), datedDecember 4, 2009, as granted the plaintiff's renewed motion for summary judgment on the issueof liability on the causes of action to recover damages for violations of Labor Law § 240(1) and § 241 (6) and denied their renewed cross motion pursuant to CPLR 3212 forsummary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff was an employee of a brick mason who had been hired as a subcontractor by thedefendant general contractor P. Deblasio, Inc., and the defendant Deblasio & Capo Properties,Inc., doing business as Deblasio Capo Design Builders (hereinafter together the defendants), toextend the chimney on the roof of a private residence. The plaintiff alleges that he was injuredwhen a scaffold upon which he was standing, which had been erected alongside the residence,collapsed, causing him to fall 15 to 20 feet to the ground, and to be hit on the head by thescaffold and building materials that were on the scaffold and roof.
The plaintiff established, prima facie, his entitlement to judgment as a matter of law on hiscause of action to recover damages for a violation of Labor Law § 240 (1) by submittingevidence that he was engaged in an elevation-related activity for which he was not providedappropriate safety devices, and that the violation was a proximate cause of his injuries (see Runner v New York Stock Exch.,Inc., 13 NY3d 599, 603 [2009]; Rocovich v Consolidated Edison Co., 78 NY2d509, 514 [1991]; Riffo-Velozo v Villageof Scarsdale, 68 AD3d 839 [2009]; Chlebowski v Esber, 58 AD3d 662 [2009]; Denis v City of New York, 54 AD3d803 [2008]; Rudnik v BrogorRealty Corp., 45 AD3d 828 [2007]).
In opposition, the defendants failed to raise a triable issue of fact. The defendants relied on,inter alia, the deposition testimony of the plaintiff's supervisor, who testified that the accidentoccurred when the plaintiff was riding in a bucket that had been raised by a machine, and thebucket struck the [*2]scaffold, causing it to collapse, which, inturn, caused building materials to fall on the plaintiff. Even accepting the defendants' version ofthe accident, the unsecured materials that fell on the plaintiff were materials that "requiredsecuring for the purposes of the undertaking" (Outar v City of New York, 5 NY3d 731, 732 [2005]; see Bornschein v Shuman, 7 AD3d476 [2004]; cf. Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).Moreover, contrary to the defendants' contention, the plaintiff's conduct did not constitute anunforeseeable, intervening act that relieved the defendants of liability, given the depositiontestimony of the plaintiff's supervisor that the defendants left the subject machine on the worksite with the keys inside it, the defendants permitted the plaintiff's employer to use the machine,and that, before the accident, the plaintiff's supervisor, the plaintiff, and a coworker had used themachine to transport workers and building materials between the ground and the roof (seeGordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]). It was reasonably foreseeable thatthe bucket in which the plaintiff was riding would strike the scaffold, causing the scaffold andunsecured materials to fall, and this possibility was not "of such an extraordinary nature or soattenuated from the defendants' conduct that responsibility for the injury should not reasonably beattributed to them" (id. at 562; see Derdiarian v Felix Contr. Corp., 51 NY2d 308,315 [1980]; cf. Williams v 520 MadisonPartnership, 38 AD3d 464, 466-467 [2007]). In light of the deposition testimony of theplaintiff's supervisor, the defendants also failed to raise a triable issue of fact as to whether theplaintiff's conduct constituted the sole proximate cause of the accident (cf. Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35 [2004]).
The plaintiff also established, prima facie, his entitlement to judgment as a matter of law onhis cause of action to recover damages pursuant to Labor Law § 241 (6), predicated on aviolation of 12 NYCRR 23-1.8 (c) (1) based on the failure to provide him with a safety helmet,and that he was injured when the scaffold and building materials fell upon him (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Marin v AP-Amsterdam 1661 ParkLLC, 60 AD3d 824, 826 [2009]; Parrales v Wonder Works Constr. Corp., 55 AD3d 579, 582[2008]; see also Bornschein v Shuman, 7 AD3d at 478). In opposition, even accepting thedefendants' version of the accident, they failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the plaintiff's renewed motion forsummary judgment and denied the defendants' renewed cross motion for summary judgment.Covello, J.P., Dickerson, Belen and Lott, JJ., concur.