| Canosa v Holy Name of Mary R.C. Church |
| 2011 NY Slip Op 02825 [83 AD3d 635] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Fernando Canosa et al., Respondents-Appellants, v HolyName of Mary Roman Catholic Church, Appellant-Respondent. |
—[*1] Gruenberg & Kelly, P.C., Ronkonkoma, N.Y. (John Aviles of counsel), forrespondents-appellants.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby its brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), datedMarch 22, 2010, as denied its cross motion for summary judgment dismissing the complaint, andthe plaintiffs cross-appeal from so much of the same order as denied their motion for summaryjudgment on the issue of liability on their cause of action to recover damages for a violation ofLabor Law § 240 (1).
Ordered that the cross appeal is dismissed as abandoned, without costs or disbursements; andit is further,
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the defendant's cross motion which were for summary judgment dismissing thecauses of action to recover damages for violations of Labor Law §§ 200, 241 (6),and common-law negligence, and substituting therefor a provision granting those branches of thecross motion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff Fernando Canosa (hereinafter the injured plaintiff) allegedly was injured whenhe fell from a scaffold while working on a project to paint and repair the defendant's premises.The accident occurred while the injured plaintiff was in the process of dismantling the lowestlevel of the scaffold, at a height of about six to seven feet above the ground. The scaffoldplatform consisted of three aluminum planks approximately 10 feet long, which were hooked orclipped together. The injured plaintiff, who was standing on the scaffold platform whiledisassembling it, had just unhooked the second of the three planks, and was handing it to a fellowemployee, when he lost his balance and fell. Following the accident, the injured plaintiff and hiswife, suing derivatively, commenced this action seeking to recover damages, inter alia, forviolations of Labor Law §§ 200, 240 (1) and § 241 (6), and common-lawnegligence. After depositions had been conducted, the plaintiffs [*2]moved for summary judgment on the issue of liability on theircause of action alleging a violation of Labor Law § 240 (1), and the defendantcross-moved for summary judgment dismissing the complaint. The Supreme Court denied boththe motion and cross motion. We modify by granting those branches of the defendant's crossmotion which were for summary judgment dismissing the causes of action to recover damagesfor violations of Labor Law §§ 200, 241 (6), and common-law negligence.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of itscross motion which was to dismiss the plaintiffs' cause of action to recover damages for violationof Labor Law § 240 (1). Labor Law § 240 (1) imposes a nondelegable duty uponowners and general contractors to provide safety devices to protect workers fromelevation-related risks (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993];Barr v 157 5 Ave., LLC, 60 AD3d796 [2009]). "To impose liability pursuant to Labor Law § 240 (1), there must be aviolation of the statute and that violation must be a proximate cause of the plaintiff's injuries" (Tama v Gargiulo Bros., Inc., 61 AD3d958, 960 [2009]; see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). "Where there is nostatutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries,there can be no recovery under Labor Law § 240 (1)" (Treu v Cappelletti, 71 AD3d 994, 997 [2010]; see Silvas v Bridgeview Invs., LLC, 79AD3d 727 [2010]).
Here, the defendant made a prima facie showing of its entitlement to summary judgmentdismissing the Labor Law § 240 (1) cause of action through the submission of an expertaffidavit concluding that the injured plaintiff was provided with adequate safety devices, and wasthe sole proximate cause of his accident because he needlessly exposed himself to an elevationrisk by standing on the scaffold platform to unhook the planks instead of doing so from theground or using an available ladder (seeBroggy v Rockefeller Group, Inc., 8 NY3d 675, 681-682 [2007]; Bin Gu v Palm Beach Tan, Inc., 81AD3d 867 [2011]). However, the evidence submitted in opposition to the cross motion,which included the affidavit of an engineer, was sufficient to raise triable issues of fact as towhether the injured plaintiff was provided with adequate safety devices and, if not, whether theabsence of certain safety devices was a proximate cause of the accident.
The Supreme Court should have granted that branch of the defendant's cross motion whichwas for summary judgment dismissing the cause of action to recover damages for violation ofLabor Law § 241 (6). In order to establish a Labor Law § 241 (6) claim, a plaintiffmust allege a violation of a specific and applicable provision of the Industrial Code (see Rossv Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505 [1993]; D'Elia v City of New York, 81 AD3d682 [2011]). The defendant made a prima facie showing of its entitlement to summaryjudgment dismissing the plaintiffs' Labor Law § 241 (6) claim by demonstrating that theIndustrial Code sections identified by the plaintiffs in their response to a preliminary conferenceorder did not apply to the facts of this case. In opposition to the motion, the plaintiffs concededthat the Industrial Code sections they had previously identified were inapplicable, but alleged forthe first time that the defendant had violated Industrial Code (12 NYCRR) § 23-5.1 (h),which provides that "[e]very scaffold shall be erected and removed under the supervision of adesignated person." Although the Supreme Court had the discretion to consider the belatedcitation of this provision (see Kowalik vLipschutz, 81 AD3d 782 [2011]; D'Elia v City of New York, 81 AD3d 682 [2011]; Galarraga v City of New York, 54AD3d 308, 310 [2008]), the plaintiffs still failed to raise a triable issue of fact as to whethera violation of Industrial Code (12 NYCRR) § 23-5.1 (h) occurred since the depositiontestimony of the injured plaintiff and of two other workers indicates that a supervisor designatedby their employer was present during the scaffold dismantling process.
The Supreme Court also should have granted that branch of the defendant's cross motionwhich was for summary judgment dismissing the causes of action to recover damages for analleged violation of Labor Law § 200 and common-law negligence. The defendant made aprima facie showing that the accident was caused by the manner in which the injured plaintiffperformed his work, and that it did not have the authority to supervise or control the performanceof his work (see Erickson v Cross ReadyMix, Inc., 75 AD3d 519, 522-523 [2010]; McFadden v Lee, 62 AD3d 966, 967 [2009]; Ortega v Puccia, 57 AD3d 54, 61[2008]). In opposition, the plaintiffs failed to raise a triable issue of fact.[*3]
The cross appeal must be dismissed as abandonedbecause the plaintiffs' brief does not seek reversal or modification of any portion of the orderappealed from (see Plaisir v RoyalHome Sales, 81 AD3d 799 [2011]; Matter of Harris v Town Bd. of Town of Riverhead, 73 AD3d 922,925 [2010]). Covello, J.P., Dickerson, Eng and Sgroi, JJ., concur.