| Nicometi v Vineyards of Fredonia, LLC |
| 2013 NY Slip Op 04473 [107 AD3d 1537] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| Marc A. Nicometi, Respondent, v Vineyards of Fredonia,LLC, et al., Appellants, et al., Defendants. Scott Pfohl et al., Third-PartyPlaintiffs, v Western New York Plumbing-Ellicott Plumbing and RemodelingCo., Inc., Third-Party Defendant-Appellant. |
—[*1] Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for defendant-appellantthe Vineyards of Fredonia, LLC. Baxter Smith & Shapiro, P.C., West Seneca (Louis B. Dingeldey, Jr., of counsel), forthird-party defendant-appellant. The Ballow Law Firm, P.C., Buffalo (Jason A. Richman of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Thomas J. Drury, J.),entered June 12, 2012. The order, inter alia, granted the motion of plaintiff for partialsummary judgment on liability against defendants the Vineyards of Fredonia, LLC andWinter-Pfohl, Inc.
It is hereby ordered that the order so appealed from is modified on the law bydenying plaintiff's motion and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this common-law negligence and Labor Lawaction seeking damages for injuries he sustained when he fell at a construction site.Plaintiff moved for partial summary judgment on the issue of liability with respect to theLabor Law § 240 (1) claim, defendant Winter-Pfohl, Inc., cross-moved for, interalia, summary judgment dismissing that claim against it, defendant the Vineyards ofFredonia, LLC (the Vineyards) opposed plaintiff's motion and also sought dismissal ofthe Labor Law § 240 (1) claim, and third-party defendant opposed both the motionand the cross motion. The Vineyards, Winter-Pfohl, Inc., and third-[*2]party defendant (collectively, defendants) appeal from anorder that, among other things, granted the motion and denied the cross motion.
Contrary to the contention of defendants, Supreme Court properly concluded thatplaintiff's fall was the result of an elevation-related risk for which Labor Law §240 (1) provides protection. Plaintiff alleged that he fell when his stilts slipped on icewhile he was installing insulation at an elevated level, i.e., the ceiling. It is well settledthat "[t]he contemplated hazards [covered by the statute] are those related to the effectsof gravity where protective devices are called for either because of a difference betweenthe elevation level of the required work and a lower level or a difference between theelevation level where the worker is positioned and the higher level of the materials orload being hoisted or secured" (Rocovich v Consolidated Edison Co., 78 NY2d509, 514 [1991]). Here, the "risk was created by the need to elevate plaintiff to the height[of the ceiling], and the [stilts were] the . . . safety device provided toprotect the worker from the risk inherent in having to work at a height" (Felker vCorning Inc., 90 NY2d 219, 224 [1997]). Inasmuch as the stilts "failed whileplaintiff was installing the [insulation on the ceiling]—work requiring the statute'sspecial protections" (Melber v 6333 Main St., 91 NY2d 759, 763-764 [1998]),the court properly concluded that the statute applies to plaintiff's section 240 (1) claim.Consequently, the court properly denied the cross motion.
Nevertheless, we agree with defendants' further contention that the court erred ingranting the motion because we conclude that there is a triable issue of fact whetherplaintiff's actions were the sole proximate cause of his injuries. Although plaintiff met hisinitial burden on the motion (see generally Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]), defendants raised a triable issue of fact by introducing evidence that hewas directed not to work in the area where the ice was located. Thus, " '[u]nlike thosesituations in which a safety device fails for no apparent reason, thereby raising thepresumption that the device did not provide proper protection within the meaning ofLabor Law § 240 (1), here there is a question of fact [concerning] whether theinjured plaintiff's fall [resulted from] his own misuse of the safety device and whethersuch conduct was the sole proximate cause of his injuries' " (Thome v Benchmark Main Tr.Assoc., LLC, 86 AD3d 938, 940 [2011]). We therefore modify the orderaccordingly.
We have considered defendants' remaining contentions and conclude that they arewithout merit.
All concur except Fahey and Whalen, JJ., who dissent and vote to affirm in thefollowing memorandum.
Fahey and Whalen, JJ. (dissenting). We respectfully dissent. We agree with themajority that Supreme Court properly concluded that plaintiff is a covered worker underLabor Law § 240 (1). We cannot agree with the majority, however, that there is atriable issue of fact whether plaintiff's conduct was the sole proximate cause of theaccident. We therefore conclude that the court properly granted plaintiff's motion forpartial summary judgment on the issue of liability under Labor Law § 240 (1) andwould affirm.
This action arises out of an accident that occurred as plaintiff worked from stilts toinstall insulation on a ceiling at an apartment complex. The stilts were set in such a waythat the bottoms of plaintiff's feet were between three and five feet off of the floor.Plaintiff and plaintiff's supervisor (supervisor) both testified at their depositions that theysaw ice on the floor of the area in which plaintiff was working, and the supervisorrecalled that the ice covered approximately a four-foot by four-foot area and was notmore than one eighth of an inch thick. Although, in his words, the ice was "clear likewater," the supervisor merely told plaintiff "not to be in that area," and took no measuresto protect plaintiff from that hazard. Indeed, despite the fact that plaintiff's work requiredplaintiff to look up and away from the floor to complete his assigned task, the supervisordid not guard the ice with caution tape, barricades or similar [*3]devices, and thus left plaintiff unprotected from thathazard.
As the majority notes, plaintiff alleges that he fell when the stilts slipped on the icewhile he was working. We respectfully disagree with the majority that there is an issue offact whether plaintiff's conduct was the sole proximate cause of his accident inasmuch asthe record establishes that plaintiff was not provided with a proper safety device. "[T]henondelegable duty . . . under Labor Law § 240 (1) 'is not met merelyby providing safety instructions . . . , but [rather is met] byfurnishing, placing and operating such devices so as to give [plaintiff]proper protection' " (Long vCellino & Barnes, P.C., 68 AD3d 1706, 1707 [2009] [emphasis added andinternal quotation marks omitted]). In our view, "stilts on ice" is the wrong device fromwhich to work at an elevation, and we thus conclude that plaintiff was not furnished witha proper safety device as a matter of law (see Ewing v ADF Constr. Corp., 16 AD3d 1085, 1086[2005]). "Where, as here, there is a statutory violation that is a proximate cause of theinjuries, 'plaintiff cannot be solely to blame for [it]' " (id., quoting Blake v Neighborhood Hous.Servs. of N.Y. City, 1 NY3d 280, 290 [2003]). Even assuming, arguendo, thatplaintiff was provided with proper protection, we further conclude that his actions cannotbe the sole proximate cause of the accident because under the circumstances of this casethe stilts were not " 'so . . . placed . . . as to give properprotection' to plaintiff" (Ward vCedar Key Assoc., L.P., 13 AD3d 1098, 1098 [2004]; see Blake, 1NY3d at 290).
Finally, we note that Thomev Benchmark Main Tr. Assoc., LLC (86 AD3d 938 [2011]) does not compel adifferent result here. In that Labor Law § 240 (1) case, the majority concluded thatthere was a question of fact whether the plaintiff fell as a result of his own misuse of ascissor lift, and whether that conduct was the sole proximate cause of his injuries(id. at 939-940). There, the defendants tendered "evidence that plaintiff wasaware that holes had been cut into the concrete floor of the building in which he wasworking and that, on the morning of his accident, plaintiff had been specifically directednot to operate the scissor lift in the area where the holes had been cut" (id.). Thedefendants also offered "evidence that plaintiff drove the raised lift into that area whilelooking at the ceiling rather than where the lift was going" (id. at 940).
Our review of the record in Thome, however, reveals that the plaintiff in thatcase was not merely instructed to stay away from a hazard. The "holes" in question inThome, although not protected by caution tape, barricades or cones, were markedby wood pallets that "came up a little bit" inside those depressions, which measured threefeet by three feet and were six inches deep. Although those wood pallets were apparentlydifficult to distinguish from the depressions at issue at the time of the accident because ithad rained earlier on the morning of the accident, the fact remains that there was at leastsome demarcation of the hazard in that case. Here, the ice that formed the dangerouscondition covered an unmarked four-foot by four-foot area. Moreover, the ice wasundeniably unremarkable to the extent that it was not more than one eighth of an inchthick and, in the supervisor's words "clear like water." Consequently, Thomedoes not bind us here. Present—Smith, J.P., Fahey, Carni, Sconiers and Whalen,JJ.