| Kin v State of New York |
| 2012 NY Slip Op 08887 [101 AD3d 1606] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| Summer Kin, Appellant-Respondent, v State of New York,Respondent-Appellant. (Claim No. 115651.) |
—[*1] Law Offices of Theresa J. Puleo, Syracuse (P. David Twichell of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from an order of the Court of Claims (Nicholas V. Midey, Jr., J.),entered February 3, 2012 in a personal injury action. The order denied claimant's motion forpartial summary judgment and granted in part and denied in part defendant's cross motion forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting claimant's motion seeking partial summary judgment on liability with respect to theLabor Law § 240 (1) cause of action and granting that part of defendant's cross motionseeking summary judgment dismissing the Labor Law § 241 (6) claim, and as modified theorder is affirmed without costs.
Memorandum: Claimant commenced this action seeking damages for injuries she sustainedwhen she fell from a ladder while working on a bridge reconstruction project. Claimant'semployer had been hired by defendant, the property owner, to repair the bridge in question. Atthe time of the accident, claimant was using the top half of an extension ladder that lacked rubberfeet in an attempt to gain access to a scaffold that had been erected under the bridge. Whenclaimant was four or five rungs from the top of the ladder, the bottom of the ladder slid out frombeneath her, causing her to fall approximately 10 feet to the ground.
Claimant asserted causes of action for common-law negligence and violations of Labor Law§§ 200, 240 (1) and 241 (6). Following discovery, claimant moved for partialsummary judgment on liability with respect to her section 240 (1) cause of action, and defendantcross-moved for summary judgment dismissing the claim in its entirety. The Court ofClaims denied the motion and granted that part of the cross motion for summary judgmentdismissing the section 200 claim and the common-law negligence cause of action.
With respect to claimant's appeal and that part of defendant's cross appeal concerning thesection 240 (1) cause of action, we reject defendant's contention that the sole proximate cause of[*2]the accident was claimant's improper use of the top half of theextension ladder, which lacked rubber feet. We conclude that, because there is no dispute that theladder slipped and thereby caused claimant to fall from an elevated work site, claimant met herinitial burden under Labor Law § 240 (1) of establishing that the ladder was "not so placed. . . as to give proper protection to [her]" (Kirbis v LPCiminelli, Inc., 90 AD3d 1581, 1582 [2011] [internalquotation marks omitted]; see Ozimek vHoliday Val., Inc., 83 AD3d 1414, 1415 [2011]; Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135,1136 [2008]). Thus, the burden shifted to defendant to raise an issue of fact whether claimant's"own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximatecause of [her] accident" (Cahill vTriborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]), and defendant failed tomeet that burden.
In order to raise an issue of fact whether claimant's own conduct was the sole proximatecause of the accident, defendant was required to establish that "the safety devices that [claimant]alleges were absent were readily available at the work site, albeit not in the immediate vicinity ofthe accident, and [that claimant] knew [she] was expected to use them but for no good reasonchose not to do so, causing an accident" (Gallagher v New York Post, 14 NY3d 83, 88 [2010]; see Ganger v Anthony Cimato/ACPPartnership, 53 AD3d 1051, 1052 [2008]). Although defendant established that ladderswith rubber feet, i.e., the bottom halves of extension ladders, were available at the work site forclaimant's use, defendant submitted no evidence that claimant knew that she was expected to useonly those ladders. Indeed, claimant's supervisor testified at his deposition that he neverinstructed claimant or any other worker that only the bottom halves of extension ladders shouldbe used, and he further testified that, in his view, either half of an extension ladder could safelybe used if "put up correctly." In addition, claimant testified that she had previously used laddersthat did not have rubber feet and that she believed that other workers had used such ladders aswell. Although claimant further testified that she realized "in retrospect" that it was inappropriateto use the top half of the extension ladder, defendant submitted no evidence that claimant knewat the time of the accident that her use of the top half of the extension ladder was unsafe. Thus,we conclude that the court erred in denying claimant's motion for partial summary judgment onliability under Labor Law § 240 (1), and we therefore modify the order accordingly.
With respect to that part of defendant's cross appeal concerning the Labor Law § 241(6) claim, we agree with defendant that the court should have granted that part of its cross motionfor summary judgment dismissing that claim, which was based on defendant's alleged violationof two provisions of the Industrial Code. 12 NYCRR 23-1.21 (b) (4) (iv), concerning thesecurement of ladders from which work is being performed, is inapplicable to the facts of thiscase because claimant was not performing work from a ladder; instead, she was using the ladderto gain access to the scaffold from which she intended to perform the assigned work.Additionally, 12 NYCRR 23-1.21 (a) sets forth a general standard of care and is not sufficientlyspecific to support a section 241 (6) claim (see generally Fisher v WNY Bus Parts, Inc., 12 AD3d 1138, 1140[2004]). We therefore further modify the order accordingly.
Finally, we note that claimant on her appeal has abandoned any contention with respect to thecourt's dismissal of her common-law negligence cause of action and her Labor Law § 200claim (see Gowans v Otis MarshallFarms, Inc., 85 AD3d 1704, 1704-1705 [2011]; Ciesinski v Town of Aurora,202 AD2d 984, 984 [1994]). Present—Centra, J.P., Peradotto, Lindley, Sconiers andMartoche, JJ.