| Vetrano v J. Kokolakis Contr., Inc. |
| 2012 NY Slip Op 08113 [100 AD3d 984] |
| November 28, 2012 |
| Appellate Division, Second Department |
| Joseph Vetrano et al., Appellants, v J. KokolakisContracting, Inc., Defendant/Third-Party Plaintiff-Respondent. Derek K. Miller Enterprises, Inc.,Third-Party Defendant-Respondent, et al., Third-Party Defendant. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T. Reagan of counsel), fordefendant/third-party plaintiff-respondent. Faust Goetz Schenker & Blee, New York, N.Y. (Peter Kreymer of counsel), for third-partydefendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from anorder of the Supreme Court, Suffolk County (Cohalan, J.), dated June 1, 2011, which denied theirmotion for summary judgment on the issue of liability on the cause of action alleging a violationof Labor Law § 240 (1), and (2), as limited by their brief, from so much of an order of thesame court dated January 24, 2012, as, in effect, upon renewal, adhered to the determination inthe order dated June 1, 2011, and denied their separate motion to sever the third-party actionfrom the main action.
Ordered that the appeal from the order dated June 1, 2011, is dismissed, as that order wassuperseded by the order dated January 24, 2012, in effect, made upon renewal; and it is further,
Ordered that the order dated January 24, 2012, is modified, on the law, by deleting theprovision thereof, in effect, upon renewal, adhering to the determination in the order dated June1, 2011, denying the plaintiffs' motion for summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1), and substituting therefor aprovision, upon renewal, vacating the order dated June 1, 2011, and thereupon granting thatmotion; as so modified, the order dated January 24, 2012, is affirmed insofar as appealed from,and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
Joseph Vetrano (hereinafter the injured plaintiff) sustained injuries when he fellapproximately 12 to 13 feet from a steel beam while working as an ironworker at a constructionsite in Farmingdale. At the time of the accident, he was employed by the third-party defendantDerek [*2]K. Miller Enterprises, Inc. (hereinafter Miller). Theinjured plaintiff, and his wife suing derivatively, commenced this action against J. KokolakisContracting, Inc. (hereinafter Kokolakis), the general contractor for the project. In September2009, Kokolakis commenced a third-party action against the third-party defendant CanatalIndustries, Inc. (hereinafter Canatal), the subcontractor it hired to erect the steelwork, and Miller,to which Canatal subcontracted the work, but thereafter, by stipulation dated December 6, 2009,agreed to discontinue the third-party action. Subsequently, the plaintiffs moved for summaryjudgment on the issue of liability on their cause of action alleging a violation of Labor Law§ 240 (1). Kokolakis recommenced the third-party action against Canatal and Miller. Byorder dated June 1, 2011, the Supreme Court denied the plaintiffs' motion. The plaintiffs movedfor leave to renew the motion and, separately, to sever the third-party action from the mainaction. By order dated January 24, 2012, the Supreme Court, in effect, granted that branch of theplaintiffs' motion which was for leave to renew and, upon renewal, adhered to its originaldetermination. The Supreme Court also denied the plaintiffs' separate motion to sever thethird-party action.
The plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law onthe Labor Law § 240 (1) cause of action. In order to prevail on a cause of action pursuantto Labor Law § 240 (1), a plaintiff must establish that an owner or contractor failed toprovide appropriate safety devices at an elevated work site and that such violation of the statutewas the proximate cause of his or her injuries (see Ramsey v Leon D. DeMatteis Constr. Corp., 79 AD3d 720, 722[2010]). Here, the injured plaintiff's deposition testimony established that he had not beenprovided with appropriate safety devices that could have prevented his fall and that the lack ofsuch devices was the proximate cause of the accident. Specifically, in order to perform hisassigned task to establish connections between steel beams, the injured plaintiff walked along thetop of a steel beam. He wore a safety harness with a hook that could be attached to a safety line.At the first location where he worked, he attached himself to a safety line. However, as hewalked along the beam to a second location, about 20 feet away, no safety lines were available.Moreover, there was no safety netting below. The injured plaintiff slipped on what he believedwas ice on the beam and fell to the floor below.
Contrary to Kokolakis's contention, the plaintiffs' original motion was sufficiently supportedby the affidavit of the injured plaintiff's coworker, who had personal knowledge of the facts(see Federal Fin. Co. v Levine, 281 AD2d 454, 455 [2001]; CPLR 3212 [b]). In anyevent, the failure to submit an affidavit by a person with knowledge of the facts is not necessarilyfatal to a motion where, as here, the moving party submits other proof, such as depositiontestimony with an attorney's affirmation (see Alvarez v Prospect Hosp., 68 NY2d 320,325 [1986]; Olan v Farrell Lines, 64 NY2d 1092, 1093 [1985]; Maragos v Sakurai, 92 AD3d 922,923 [2012]; Finnegan v Staten Is. R.T. Operating Auth., 251 AD2d 539, 540 [1998];Woods v Zik Realty Corp., 172 AD2d 606, 606 [1991]).
Furthermore, the injured plaintiff's unsigned but certified deposition transcript wasadmissible since, in submitting the transcript in support of his own motion, the plaintiff, in effect,adopted it as accurate (see Rodriguez vRyder Truck, Inc., 91 AD3d 935, 936 [2012]; Ashif v Won Ok Lee, 57 AD3d 700, 700 [2008]). The depositiontranscript of Bernard Mulligan, Kokolakis's superintendent, was also admissible since, althoughunsigned, it was certified and Kokolakis did not challenge its accuracy in its opposing papers (see Boadu v City of New York, 95AD3d 918, 919 [2012]; Rodriguez v Ryder Truck, Inc., 91 AD3d at 936; Zalot v Zieba, 81 AD3d 935, 936[2011]; Bennett v Berger, 283 AD2d 374, 375 [2001]). Kokolakis's contention thatMulligan's deposition testimony was insufficient to establish, prima facie, that Kokolakis was ageneral contractor within the meaning of Labor Law § 240 (1) is without merit.
In opposition to the plaintiffs' prima facie showing, Kokolakis and Miller failed to raise atriable issue of fact. Contrary to the plaintiffs' contention, as a third-party defendant, Miller mayproperly raise the issue of whether the injured plaintiff's conduct was the sole proximate cause ofhis fall (see CPLR 1008; JPMorgan Chase Bank, N.A. v Strands Hair Studio, LLC, 84 AD3d 1173, 1173 [2011]).However, Miller failed to raise a triable issue of fact in that regard (see Gallagher v New York Post, 14NY3d 83, 88-89 [2010]; Andreskyv Wenger Constr. Co., Inc., 95 AD3d 1247, 1249 [2012]). Accordingly, upon renewal,the Supreme Court should have granted the plaintiffs' motion for [*3]summary judgment on the issue of liability on the cause of actionalleging a violation of Labor Law § 240 (1) (see Stein v Yonkers Contr., 244 AD2d474, 475 [1997]; Delaney v Spiegel Assoc., 225 AD2d 1102, 1102-1103 [1996];DiMuro v Town of Babylon, 210 AD2d 373, 374 [1994]).
However, the Supreme Court properly denied the plaintiffs' separate motion to sever thethird-party action from the main action (cf. Singh v City of New York, 294 AD2d 422,423 [2002]).
Kokolakis's and Miller's remaining contentions are without merit, need not be reached, or areimproperly raised for the first time on appeal. Balkin, J.P., Roman, Sgroi and Cohen, JJ., concur.[Prior Case History: 2011 NY Slip Op 31616(U).]