| Vega v Renaissance 632 Broadway, LLC |
| 2013 NY Slip Op 01261 [103 AD3d 883] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Julio Ricardo Vega Vega,Appellant-Respondent, v Renaissance 632 Broadway, LLC,Defendant/Third-Party Plaintiff-Respondent-Appellant. Shaira Construction Corp.,Third-Party Defendant-Respondent. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T. Reagan of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Queens County (Strauss,J.), dated July 25, 2011, as denied that branch of his motion which was for summaryjudgment on the issue of liability on the cause of action alleging a violation of LaborLaw § 240 (1), and granted that branch of the defendant third-party plaintiff's crossmotion which was for summary judgment dismissing the cause of action alleging aviolation of Labor Law § 241 (6), and the defendant third-party plaintiffcross-appeals from the same order.
Ordered that the cross appeal is dismissed as abandoned (see 22 NYCRR670.8 [e]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the third-party defendant, payable by theplaintiff.
The plaintiff, an employee of the third-party defendant, Shaira Construction Corp.(hereinafter Shaira), testified at his deposition that, on the day of his accident, Shaira'sprincipal, Balwinder Singh, directed him to stand on an unsecured ladder and removepipes from the ceiling of a building during demolition work. The pipes were supportedby brackets. The plaintiff testified that as he was cutting a bracket, other brackets gaveway, and a pipe fell and hit the ladder. This allegedly caused the ladder to fall over, andthe plaintiff fell to the floor. While the plaintiff testified that Singh had told him toascend the ladder and cut the pipe, Singh testified at his deposition that he had onlyauthorized other employees to do this work, and that he had only instructed the plaintiffto do clean-up work.
The plaintiff moved, inter alia, for summary judgment on the issue of liability on hiscause of action alleging a violation of Labor Law § 240 (1), based on the ladderhaving been [*2]unsecured. The defendant third-partyplaintiff, Renaissance 632 Broadway, LLC (hereinafter Renaissance), the owner of thebuilding, cross-moved, inter alia, for summary judgment dismissing the cause of actionalleging a violation of Labor Law § 241 (6), contending that the Industrial Codeprovisions the plaintiff relied upon did not apply. Shaira opposed the plaintiff's motion,contending that that there was a triable issue of fact as to whether the plaintiff was actingoutside the scope of his employment at the time of the accident.
The Supreme Court denied that branch of the plaintiff's motion which was forsummary judgment on the issue of liability on his cause of action alleging a violation ofLabor Law § 240 (1), and granted that branch of Renaissance's cross motion whichwas for summary judgment dismissing the cause of action alleging a violation of LaborLaw § 241 (6).
"To receive the protections of Labor Law §§ 240 and 241, an employeemust show that 'he [or she] was both permitted or suffered to work on a building orstructure and that he [or she] was hired by someone, be it owner, contractor or theiragent' " (Singh v City of NewYork, 68 AD3d 1095, 1096 [2009], quoting Whelen v Warwick Val. Civic& Social Club, 47 NY2d 970, 971 [1979]). Here, in opposition to the plaintiff'sprima facie showing of entitlement to judgment as a matter of law (see Durmiaki v International Bus.Machs. Corp., 85 AD3d 960 [2011]; Cordova v 360 Park Ave. S. Assoc., 33 AD3d 750 [2006]),Renaissance and Shaira raised a triable issue of fact as to whether the plaintiff was actingoutside of the scope of his employment when he ascended the ladder and beganremoving pipes from the ceiling (see Lazri v Kingston City Consol. School Dist., 95 AD3d1642 [2012]; Haque vCrown Hgts. NRP Assoc., LP, 33 AD3d 864 [2006]; Andino v BFCPartners, 303 AD2d 338 [2003]; Higgins v 1790 Broadway Assoc., 261AD2d 223, 224 [1999]; see alsoSerrano v Popovic, 91 AD3d 626 [2012]). Thus, the Supreme Court properlydenied that branch of the plaintiff's motion which was for summary judgment on theissue of liability on his cause of action alleging a violation of Labor Law § 240 (1).
The Supreme Court also properly granted that branch of Renaissance's cross motionwhich was for summary judgment dismissing the cause of action alleging a violation ofLabor Law § 241 (6), as the Industrial Code provisions relied upon by the plaintiffare not applicable. Under 12 NYCRR 23-1.21 (e) (3), "[s]tanding stepladders shall beused only on firm, level footings. When work is being performed from a step of astepladder 10 feet or more above the footing, such stepladder shall be steadied by aperson stationed at the foot of the stepladder or such stepladder shall be secured againstsway by mechanical means." Here, the plaintiff testified that the ladder was 8 feet inheight, and Singh testified that the ladder was 6 feet in height. In either case, theregulation was inapplicable, as the step the plaintiff was standing on was less than 10 feetabove the footing (see Letterese v State of New York, 21 Misc 3d 1124[A], 2004NY Slip Op 51933[U] [Ct Cl 2004], affd 33 AD3d 593 [2006]).
The provisions of 12 NYCRR 23-3.3 (b) (3) and (c) also are inapplicable, as thehazard arose from the plaintiff's actual performance of the demolition work itself, ratherthan from "structural instability caused by the progress of the demolition" (Smith v New York City Hous.Auth., 71 AD3d 985, 987 [2010]; see Garcia v 225 E. 57th St. Owners, Inc., 96 AD3d 88, 92[2012]; Ortega v Everest RealtyLLC, 84 AD3d 542 [2011]). Mastro, J.P., Angiolillo, Chambers and Cohen, JJ.,concur. [Prior Case History: 2011 NY Slip Op 33270(U).]