| Georgia v Urbanski |
| 2011 NY Slip Op 03951 [84 AD3d 1569] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Thomas R. Georgia et al., Appellants, v Joseph Urbanski et al.,Respondents. |
—[*1] Kelly & Leonard, L.L.P., Ballston Spa (Thomas E. Kelly of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Catena, J.), entered September 7,2010 in Montgomery County, which denied plaintiffs' motion for partial summary judgment onthe issue of liability pursuant to Labor Law § 240 (1).
Plaintiff Thomas R. Georgia (hereinafter plaintiff) was employed to do framing work on ahome under construction in the Town of Stillwater, Saratoga County. He used a ladder on iceoutside of the excavated foundation while installing joists and lumber, and was injured when theladder "kicked out" from under him as he reached over to place a joist. Plaintiff and his wife,derivatively, thereafter commenced this action against defendants, the property owner andgeneral contractor for the project, asserting negligence and violations of Labor Law § 200(1), § 240 (1) and § 241 (6). Following joinder of issue, plaintiffs moved for partialsummary judgment on the issue of liability under Labor Law § 240 (1). Supreme Courtdenied the motion, finding questions of fact regarding whether plaintiff failed to use propersafety equipment and whether his own actions constituted the sole proximate cause of hisinjuries. Plaintiffs now appeal. Inasmuch as questions of fact preclude summary judgment, weaffirm.
Labor Law § 240 (1) requires contractors and owners to provide safety devicesadequate to protect workers against elevation-related hazards, and their "failure to do so results inliability for any injuries proximately caused thereby" (Silvia v Bow Tie Partners, LLC, 77 AD3d 1143, 1144 [2010]; see Sanatass v Consolidated Inv. Co.,Inc., 10 NY3d 333, 338 [2008]; Blake v [*2]Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 287-289 [2003]). Inasmuch as the ladder used by plaintiff"collapsed, slipped or otherwise failed to support him," he demonstrated a prima facieentitlement to partial summary judgment (Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188[2007]; see Morin v MachnickBldrs., 4 AD3d 668, 670 [2004]). The burden accordingly shifted to defendants to"present[ ] some evidence that the device furnished was adequate and properly placed and thatthe conduct of the plaintiff may be the sole proximate cause of his . . . injuries"(Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d at 1188; see Robinson v East Med. Ctr., LP, 6NY3d 550, 554 [2006]).
In that regard, sharp factual disputes exist regarding plaintiff's placement and use of theladder on an icy surface outside of the foundation, but he readily admitted that the decision to doso was his alone. While a plaintiff's contributory negligence does not relieve defendants ofliability under Labor Law § 240 (1) (see Morin v Machnick Bldrs., 4 AD3d at670), nonparty witnesses testified that no work was to be performed outside of the foundation.Rather, plaintiff's employer expected workers to use ladders it had placed inside thefoundation, and the record is devoid of evidence that ice was present or that ladders wereimproperly placed therein. Indeed, plaintiff was directed to join other workers inside thefoundation and was observed to do so, although he later returned to the outside of the foundation,where the accident occurred.
In short, the employer produced evidence that the ladders constituted adequate safety deviceswithin the intended work area and that plaintiff was injured only because he unilaterally chose touse a ladder outside the proper work area despite instruction to work inside the foundation. In ourview, a finder of fact could determine from this evidence "that plaintiff had adequate safetydevices available; that he knew both that they were available and that he was expected to usethem; that he chose for no good reason not to do so; and that had he not made that choice hewould not have been injured" (Cahill vTriborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). Accordingly, we agree withSupreme Court that questions of fact exist warranting the denial of plaintiffs' motion for partialsummary judgment (see Torres vMazzone Admin. Group, Inc., 46 AD3d 1040, 1041 [2007], lv denied 10 NY3d706 [2008]; Gittleson v Cool WindVentilation Corp., 46 AD3d 855, 856 [2007], lv denied 10 NY3d 715 [2008];Meade v Rock-McGraw, Inc., 307 AD2d 156, 159 [2003]; cf. Gallagher v New York Post, 14NY3d 83, 88-89 [2010]; Morin v Machnick Bldrs., 4 AD3d at 670-671).
Lahtinen, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,with costs.