| Nacewicz v Roman Catholic Church of the HolyCross |
| 2013 NY Slip Op 02167 [105 AD3d 402] |
| April 2, 2013 |
| Appellate Division, First Department |
| Jerzy Nacewicz, Appellant-Respondent, v TheRoman Catholic Church of the Holy Cross,Respondent-Appellant. |
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Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Steven DiSiervi ofcounsel), for respondent-appellant.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 23,2012, which denied plaintiff's motion for summary judgment on the issue of liabilityunder Labor Law § 240 (1) and defendant's cross motion for summary judgmentdismissing the complaint, unanimously modified, on the law, to grant plaintiff's motion,and otherwise affirmed, without costs.
Vlad Restoration, Ltd. was hired by defendant to perform a complete renovation ofdefendant's church. Plaintiff, a bricklayer's assistant employed by Vlad Restoration, wasperforming brickwork on the exterior of the church as part of the renovation. The"sidewalk bridge," or first tier, of a four-tiered exterior scaffold was accessible from theground via a number of secured extension ladders. Plaintiff was working on the groundlevel when the bricklayer told him to ask Zenon Bogucki, who was acting as substituteforeman for the day, a question. Plaintiff ascended to the sidewalk bridge using one ofthe properly secured ladders. When Bogucki still could not hear plaintiff from thesidewalk bridge, plaintiff began ascending a second extension ladder that was notproperly secured. The ladder slid, causing plaintiff to fall to the sidewalk bridgeapproximately 10 feet below.
Labor Law § 240 (1) imposes liability on contractors and owners for theexistence of certain elevation-related hazards and the failure to provide an adequatesafety device of the kind enumerated in the statute (see Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904[2008]; Cahill v TriboroughBridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). To establish a claim under thisprovision, a plaintiff must "show that the statute was violated and that the violationproximately caused his injury" (Cahill, 4 NY3d at 39). Accordingly, "where aplaintiff's own actions are the sole proximate cause of the accident, there can be noliability" (id.). To raise a triable issue of fact as to whether a plaintiff was the soleproximate cause of an accident, the defendant must produce evidence that adequatesafety devices were available, that the plaintiff knew that they were available and wasexpected to use them, and that the plaintiff unreasonably chose not to do so, causing theinjury sustained (see id. at 40; Gallagher v New York Post, 14 NY3d 83, 88[*2][2010]).
"It is well settled that failure to properly secure a ladder to insure that it remainssteady and erect while being used, constitutes a violation of Labor Law § 240 (1)"(Schultze v 585 W. 214th St. Owners Corp., 228 AD2d 381, 381 [1st Dept1996]). Here, plaintiff has adduced sufficient evidence to show that he fell 10 feet froman unsecured extension ladder which slid. Plaintiff testified that the ladder was alreadyset up for usage when he arrived on the sidewalk bridge. Defendant has not contradictedthis claim, advancing only Bogucki's testimony that he saw the ladder lying on its sideearlier in the day. Defendant's argument that plaintiff should have checked the ladderdoes not show intentional misuse or other egregious misconduct and amounts, at most, tocontributory negligence, a defense inapplicable to a Labor Law § 240 (1) claim(see Hernandez v 151 Sullivan Tenant Corp., 307 AD2d 207, 208 [1st Dept2003]).
Defendant also argues that plaintiff was the sole proximate cause of his injuriesbecause he did not use the fire escape to ascend to the scaffold's second tier. However,the evidence fails to raise a question of fact as to whether plaintiff knew he was expectedto use this alternate means of ascending to the second tier and unreasonably chose not touse it. To the contrary, when asked at his deposition whether he ever told plaintiff to usethe fire escape, Bogucki responded that plaintiff had just returned from Poland three daysearlier and was new to this site, and Bogucki believed "there was no need to give such[an] explanation to him" because plaintiff was supposed to be assigned "to just do thecement job at the bottom."
Bogucki also testified that the foreman told "all the workers that the fire escape is thestandard way of moving between the platforms," but admitted that this was weeks earlier,before plaintiff's return from Poland, and this instruction was not given every day.Tellingly absent from the record is any affidavit or testimony from the foreman, MarekKraszewsky, who allegedly gave such instruction. Assuming, although it is notestablished by admissible evidence, that this instruction was ever given to plaintiff, itwould not suffice to create an issue as to whether plaintiff was the sole proximate causeof his accident. The instruction, as related in Bogucki's testimony, does not establish thatplaintiff was ever told the use of the extension ladder was forbidden, or, put differently,that use of the fire escape was not only the "standard way," but the exclusive wayto move between tiers. As defendant has noted, plaintiff did not work on the scaffold andhad not accessed its tiers prior to this occasion, as he had previously only worked on theground and roof. Therefore, defendant has not shown that plaintiff knew he was expectedto only use the fire escape rather than an extension ladder to access the secondscaffold tier and unreasonably chose not to do so (see Gallagher v New YorkPost, 14 NY3d at 88-89; cf. Cahill, 4 NY3d at 39-40 [the plaintiff receivedspecific instructions that he chose to [*3]disregard]). Inshort, there is no reasonable view of the evidence by which a factfinder could concludethat plaintiff was the sole proximate cause of his own accident. Concur—Sweeny,J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ.