| Przyborowski v A&M Cook, LLC |
| 2014 NY Slip Op 05852 [120 AD3d 651] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Henry Przyborowski, Appellant, v A&MCook, LLC, Defendant/Third-Party Plaintiff-Respondent. PSG Construction Company,Inc., Third-Party Defendant-Respondent. |
Bader, Yakaitis & Nonnenmacher, LLP, New York, N.Y. (John J.Nonnenmacher of counsel), for appellant.
Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (John B. Saville of counsel), fordefendant/third-party plaintiff-respondent.
O'Connor Redd LLP, White Plains, N.Y. (Amy Lynn Fenno and Sandra Lee Mekitaof counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Gavrin, J.), dated July 31, 2012, which,inter alia, denied his motion for summary judgment on the issue of liability on the causeof action alleging a violation of Labor Law § 240 (1), granted thosebranches of the cross motion of the defendant/third-party plaintiff and the separate crossmotion of the third-party defendant which were for summary judgment dismissing thecauses of action alleging violations of Labor Law §§ 200, 240 (1) and241 (6), and granted those branches of the third-party defendant's cross motion whichwere for summary judgment dismissing the common-law indemnification andcontribution causes of action that were alleged in the third-party complaint.
Ordered that the appeal from so much of the order as granted those branches of thethird-party defendant's cross motion which were for summary judgment dismissing thecommon-law indemnification and contribution causes of action that were alleged in thethird-party complaint is dismissed, as the plaintiff is not aggrieved by that portion of theorder (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereofdenying the plaintiff's motion for summary judgment on the issue of liability on the causeof action alleging a violation of Labor Law § 240 (1), and substitutingtherefor a provision granting the plaintiff's motion, and (2) by deleting the provisionsthereof granting those branches of the cross motion of the defendant/third-party plaintiffand the separate cross motion of the third-party defendant which were for summaryjudgment dismissing the causes of action alleging violations of Labor Law§§ 240 (1) and 241 (6), and substituting therefor provisions denyingthose branches of the [*2]respective cross motions; as somodified, the order is affirmed insofar as reviewed, with one bill of costs to theplaintiff.
The plaintiff allegedly sustained injuries when he fell while descending an unsecuredA-frame ladder at his work site. It is undisputed that the ladder, which provided accessfor the plaintiff and other workers to move between an upper level and a lower level ofthe work site, was unsecured and leaning against the wall in a closed position. The upperlevel of the work site was approximately six feet above the lower level. In addition to thesubject ladder, access between the two levels was available by means of a concretestaircase located approximately three to four meters away from the ladder. Notably, therecord does not establish that the plaintiff was instructed to use one method of accessrather than the other.
The plaintiff commenced this action against the owner of the work site, thedefendant A&M Cook, LLC (hereinafter Cook), alleging violations of Labor Law§§ 200, 240 (1) and 241 (6). Cook commenced a third-party actionagainst the third-party defendant, PSG Construction Company, Inc. (hereinafter PSG),the plaintiff's employer. After depositions had been conducted, the plaintiff moved forsummary judgment on the issue of liability on the cause of action alleging a violation ofLabor Law § 240 (1). Cook cross-moved for summary judgment dismissingthe complaint. PSG separately cross-moved, inter alia, for summary judgment dismissingthe causes of action alleging violations of Labor Law §§ 240 (1) and241 (6).
Cook established, prima facie, that the plaintiff's injuries arose as a result of themethods and means of his work (see Cody v State of New York, 82 AD3d 925 [2011]; McFadden v Lee, 62 AD3d966 [2009]), that it had no authority to supervise or control the plaintiff's work, andthat it did not provide the subject ladder. Therefore, Labor Law § 200imposed no liability upon Cook (see Klimowicz v Powell Cove Assoc., LLC, 111 AD3d605, 605 [2013]; Cambizaca v New York City Tr. Auth., 57 AD3d 701, 702[2008]; Ortega v Puccia, 57AD3d 54, 60-63 [2008]). In opposition, the plaintiff failed to raise a triable issue offact. Accordingly, the Supreme Court properly granted that branch of Cook's crossmotion which was for summary judgment dismissing the cause of action alleging aviolation of Labor Law § 200.
However, contrary to the Supreme Court's determination, the plaintiff established hisprima facie entitlement to judgment as a matter of law on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1), and neitherCook nor PSG raised a triable issue of fact in opposition to the plaintiff's motion.
To recover on a cause of action pursuant to Labor Law § 240 (1), aplaintiff must demonstrate that there was a violation of the statute, and that the violationwas a proximate cause of the accident (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 553-555[2006]; Blake v NeighborhoodHous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). Here, the plaintiffestablished his prima facie entitlement to judgment as a matter of law on the issue ofliability by demonstrating that he was injured when the unsecured, closed A-frame ladderfell backwards as he descended it (see Nacewicz v Roman Catholic Church of the Holy Cross, 105AD3d 402, 403 [2013]; Ordonez v C.G. Plumbing Supply Corp., 83 AD3d 1021,1022 [2011]; Preneta v NorthCastle, Inc., 65 AD3d 1027 [2009]; Rudnik v Brogor Realty Corp., 45 AD3d 828, 829[2007]).
Contrary to Cook's contention, it failed to raise a triable issue of fact as to whetherthe plaintiff's decision to use the ladder, rather than the staircase, was the sole proximatecause of his injuries. "Liability under section 240 (1) does not attach when the safetydevices that plaintiff alleges were absent were readily available at the work site, albeitnot in the immediate vicinity of the accident, and plaintiff knew he [or she] wasexpected to use them but for no good reason chose not to do so, causing an accident. Insuch cases, plaintiff's own negligence is the sole proximate cause of his [or her]injur[ies]" (Gallagher v NewYork Post, 14 NY3d 83, 88 [2010], citing Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d35, 39-40 [2004] [emphasis added]; see Robinson v East Med. Ctr., LP, 6NY3d at 553-555; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at287). Here, there is no evidence that anyone instructed the plaintiff that he was "expectedto" use the staircase rather than the ladder (Gallagher v New York Post, 14 NY3dat 89; see Cioffi v Target Corp., 114 AD3d [*3]897, 898-899 [2014]). Indeed, the record reveals that, on atleast some occasions, other workers used the ladder rather than the staircase. Under thesecircumstances, the plaintiff's exercise of his discretion in connection with whether to usethe ladder or the staircase cannot be said to be the sole proximate cause of his injuries(see Gallagher v New York Post, 14 NY3d at 88-89; Nacewicz v RomanCatholic Church of the Holy Cross, 105 AD3d at 403; Kin v State of New York, 101AD3d 1606, 1607-1608 [2012]; Dwyer v Central Park Studios, Inc., 98 AD3d 882, 883-884[2012]; cf. Cioffi v Target Corp., 114 AD3d at 899). Accordingly, the SupremeCourt should have granted the plaintiff's motion for summary judgment on the cause ofaction alleging a violation of Labor Law § 240 (1), and denied that branchof Cook's cross motion and that branch of PSG's separate cross motion which were forsummary judgment dismissing that cause of action.
Furthermore, the Supreme Court improperly granted that branch of Cook's crossmotion and that branch of PSG's separate cross motion which were for summaryjudgment dismissing the cause of action alleging violations of Labor Law§ 241 (6), which was predicated upon alleged violations of 12 NYCRR23-1.21 (b) (1), (3) (i), (iv); (4) (ii) and (e) (2). Although a plaintiff asserting a LaborLaw § 241 (6) cause of action must allege a violation of a specific andconcrete provision of the Industrial Code (see Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d 494, 503 [1993]; Kowalik v Lipschutz, 81 AD3d 782, 783 [2011]), thefailure to identify the code provision in the complaint or bill of particulars is not fatal tosuch a claim (see Kowalik v Lipschutz, 81 AD3d at 783; Galarraga v City of New York,54 AD3d 308 [2008]; Kelleir v Supreme Indus. Park, 293 AD2d 513,513-514 [2002]). Here, the plaintiff's belated allegations that Cook violated 12 NYCRR23-1.21 (b) (1), (3) (i), (iv); (4) (ii) and (e) (2) involved no new factual allegations, raisedno new theories of liability, and caused no prejudice to Cook or PSG (see Klimowicz v Powell CoveAssoc., LLC, 111 AD3d 605 [2013]; D'Elia v City of New York, 81 AD3d 682, 684 [2011];Kelleir v Supreme Indus. Park, 293 AD2d at 513-514). Moreover, these codeprovisions set forth specific, rather than general, safety standards, and are sufficient tosupport a Labor Law § 241 (6) cause of action (see Vega v Renaissance 632Broadway, LLC, 103 AD3d 883, 885 [2013]; Melchor v Singh, 90 AD3d866, 870 [2011]; Riccio vNHT Owners, LLC, 51 AD3d 897, 899 [2008]; Cun-En Lin v Holy FamilyMonuments, 18 AD3d 800, 802 [2005]; but cf. Croussett v Chen, 102 AD3d 448 [2013];Spenard v Gregware Gen. Contr., 248 AD2d 868, 871 [1998]). Since Cook andPSG did not establish, prima facie, either that those Industrial Code provisions wereinapplicable to the facts of this case, or that the alleged violation of those provisions wasnot a proximate cause of the plaintiff's injuries, the subject branches of their respectivecross motions which were for summary judgment dismissing the Labor Law§ 241 (6) cause of action should have been denied (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-505; Klimowicz v Powell Cove Assoc.,LLC, 111 AD3d 605 [2013]; cf. Melchor v Singh, 90 AD3d 866 [2011]), regardless ofthe sufficiency of the plaintiff's opposition papers. Skelos, J.P., Chambers, Duffy andLaSalle, JJ., concur. [Prior Case History: 2012 NY Slip Op 32259(U).]