| McCallister v 200 Park, L.P. |
| 2012 NY Slip Op 01595 [92 AD3d 927] |
| February 28, 2012 |
| Appellate Division, Second Department |
| Steve McCallister, Respondent, v 200 Park, L.P., et al.,Appellants. (And a Third-Party Action.) |
—[*1] Jeffrey J. Shapiro & Associates, LLC (Pollack Pollack Isaac & De Cicco, New York, N.Y.[Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Schack, J.), dated February 28, 2011, which denied theirmotion for summary judgment dismissing the complaint and granted the plaintiff's cross motionfor summary judgment on the issue of liability on the cause of action alleging a violation ofLabor Law § 240 (1).
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the defendants' motion which were for summary judgment dismissing thecauses of action alleging a violation of Labor Law § 200 and common-law negligence, andsubstituting therefor provisions granting those branches of the motion; as so modified, the orderis affirmed, with costs to the plaintiff.
On October 8, 2008, the plaintiff and his foreman, employees of the third-party defendant,Godsell Construction Corp. (hereinafter Godsell), were tasked with transporting moveable bakerscaffolds from a Godsell job site to the 32nd floor of another building where Godsell was doingwork about 10 blocks away. Four disassembled scaffolds were secured on an assembled scaffoldfor transport. The platform of the assembled scaffold was four feet high. The total weight of thefour stacked scaffolds was about 450 to 550 pounds. To wheel the scaffold, the plaintiff pulledfrom the front while the foreman pushed from the rear. About halfway to the other building, thefront right wheel broke off. The plaintiff held up the corner of the scaffold with the broken wheelas he continued to pull the scaffold. Upon arriving at the building, the plaintiff and the foremantook the scaffold in a freight elevator to the 32nd floor. As they proceeded through the fire doorinto a five-foot wide hallway at the job site, the front left wheel broke off as well. The foremanthen told the plaintiff they needed to move the scaffold further into the job site and to the left, outof the way of the fire door. The plaintiff squatted down with the bars of the scaffold on his chestin order to pick up the wheelless end of the scaffold. However, rather than moving it to the sideas the plaintiff expected, the foreman pushed the scaffold towards him. The scaffold fell forwardonto the plaintiff's chest, allegedly pinning him against the wall and injuring his spine.
The plaintiff commenced this action asserting causes of action to recover damages [*2]for common-law negligence and violations of Labor Law§§ 200, 240 (1) and § 241 (6). The defendants moved for summary judgmentdismissing the complaint, and the plaintiff cross-moved for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1). In the orderappealed from, the Supreme Court denied the defendants' motion, and granted the plaintiff's crossmotion. The defendants appeal from the order. We modify.
Initially, the Supreme Court properly considered the plaintiff's cross motion. While the crossmotion was untimely (see Brill v City ofNew York, 2 NY3d 648 [2004]), an untimely cross motion for summary judgment maybe considered by the court where, as here, a timely motion for summary judgment was made onnearly identical grounds (see Lennard vKhan, 69 AD3d 812, 814 [2010]; Grande v Peteroy, 39 AD3d 590, 591-592 [2007]; cf. Bressingham v Jamaica Hosp. Med.Ctr., 17 AD3d 496, 497 [2005]).
The defendants contend that the expert's affidavit proffered by the plaintiff could notproperly be considered in opposition to their motion and in support of the plaintiff's cross motion(see Wartski v C.W. Post Campus ofLong Is. Univ., 63 AD3d 916, 917 [2009]). However, regardless of whether the expert'saffidavit could properly be considered, the plaintiff made a prima facie showing of hisentitlement to judgment as a matter of law on the issue of liability on the cause of action alleginga violation of Labor Law § 240 (1). Contrary to the defendants' contention, the evidencedemonstrated that the plaintiff's injury was the result of an elevation differential within the scopeof Labor Law § 240 (1). Although the base of the scaffold was at the same level as theplaintiff and the scaffold only fell a short distance, given the combined weight of the device andits load, and the force it was able to generate over its descent, this difference was not de minimis(see Wilinski v 334 E. 92nd Hous. Dev.Fund Corp., 18 NY3d 1, 10 [2011]; Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009];DiPalma v State of New York, 90AD3d 1659 [2011]; Pritchard vTully Constr. Co., Inc., 82 AD3d 730, 730-731 [2011]; Gutman v City of New York, 78 AD3d886, 886-887 [2010]). Thus, the plaintiff suffered harm that " 'flow[ed] directly from theapplication of the force of gravity to the [broken scaffold]' " (Wilinski v 334 E. 92nd Hous.Dev. Fund Corp., 18 NY3d at 10, quoting Runner v New York Stock Exch., Inc., 13NY3d at 604).
In addition, the plaintiff's deposition testimony established that the statute was violated.Given that two of the scaffold's wheels failed in the course of the plaintiff's task, the scaffoldwith which the plaintiff was furnished was plainly inadequate for the work being performed(see Thompson v St. Charles Condominiums, 303 AD2d 152, 153 [2003]; see also Cantineri v Carrere, 60 AD3d1331, 1333 [2009]).
Furthermore, the record demonstrated that the accident was the direct consequence of theinadequate scaffold. Had the front two wheels of the scaffold remained intact, the plaintiff wouldnot have had to squat beneath the scaffold to compensate for their loss. Moreover, when theforeman pushed, the scaffold simply would have rolled ahead horizontally rather than tippingforward and pinning the plaintiff against the wall. Accordingly, a device that was appropriate forthe work being performed would have prevented the accident (see Striegel v Hillcrest Hgts.Dev. Corp., 100 NY2d 974, 978 [2003]; Castillo v 62-25 30th Ave. Realty, LLC, 47 AD3d 865, 866[2008]).
Thus, the plaintiff demonstrated, prima facie, his entitlement to judgment as a matter of lawon the issue of liability on the cause of action alleging a violation of Labor Law § 240 (1)(see Salvagno v J.P. Spano & Co.,Inc., 67 AD3d 986, 988 [2009]). In opposition, the defendants failed to raise a triableissue of fact as to the absence of a statutory violation or as to whether the plaintiff's own conductwas the sole proximate cause of his accident (see La Veglia v St. Francis Hosp., 78 AD3d 1123, 1127 [2010]).Accordingly, the plaintiff's cross motion for summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1) was properly granted.
Contrary to the defendants' contention, the Supreme Court properly denied that branch oftheir motion which was for summary judgment dismissing the cause of action alleging a violationof Labor Law § 241 (6). The defendants failed to sustain their prima facie burden ofdemonstrating that the Industrial Code provisions governing the weight-bearing requirements ofscaffolds and scaffold casters (see 12 NYCRR 23-5.1 [b], [c] [1]; 23-5.18 [e]) and theproper transportation of scaffolds (see 12 NYCRR 23-5.18 [h]) were either factuallyinapplicable to this case or were satisfied.[*3]
However, the defendants demonstrated their prima facieentitlement to judgment as a matter of law dismissing the causes of action alleging a violation ofLabor Law § 200 and common-law negligence, as they established that they neitherpossessed nor exercised any supervisory authority or control over the means and method of theplaintiff's work, and the plaintiff failed to raise a triable issue of fact in opposition. Accordingly,the Supreme Court should have granted those branches of the defendants' motion which were forsummary judgment dismissing the causes of action alleging a violation of Labor Law §200 and common-law negligence. Mastro, A.P.J., Hall, Sgroi and Cohen, JJ., concur.