| Salzer v Benderson Dev. Co., LLC |
| 2015 NY Slip Op 06001 [130 AD3d 1226] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| Alan P. Salzer et al., Appellants, v BendersonDevelopment Company, LLC, et al., Defendants and Third-Party Plaintiffs-Respondents.STC Mechanical, LLC, Third-Party Defendant-Respondent. |
Pentkowski Pastore & Freestone, Clifton Park (Michael J. Hutter of Powers& Santola, LLP, Albany, of counsel), for appellants.
Wilson Elser Moskowitz Edelmen & Dicker, LLP, Albany (Joseph T. Perkins ofcounsel), for defendants and third-party plaintiffs-respondents.
Goldberg Segalla, LLP, Albany (Matthew S. Lerner of counsel), for third-partydefendant-respondent.
Devine, J. Appeal from an order of the Supreme Court (Catena, J.), entered June 19,2014 in Montgomery County, which, among other things, granted defendants' crossmotion for summary judgment dismissing the complaint.
Plaintiff Alan P. Salzer (hereinafter plaintiff) partially owned and acted as a fieldsupervisor for third-party defendant, a construction firm. In November 2011, plaintiffand others employed by third-party defendant were installing rooftop heating and airconditioning units at a [*2]shopping complex ownedand/or developed by defendants. Plaintiff was standing on the roof of one of thebuildings in the complex, using hand signals to direct a crane operator who wasmaneuvering one of the units into position. Plaintiff stumbled while turning to face thecrane operator and, in so doing, fell from the roof and was injured.
Plaintiff and his spouse, derivatively, commenced this action against defendantsalleging violations of Labor Law §§ 200, 240 (1) and 241 (6) as wellas common-law negligence. Defendants, in turn, impleaded third-party defendant seekingindemnification and contribution. Plaintiffs thereafter moved for partial summaryjudgment on the issue of liability under the Labor Law § 240 (1) claim.Defendants cross-moved for summary judgment dismissing the complaint or, in thealternative, summary judgment granting the relief sought in the third-party complaint.Third-party defendant also filed a cross motion, and, while third-party defendant nowstyles that application as one for summary judgment dismissing the complaint in itsentirety, the motion papers reflect that it was one for partial summary judgmentdismissing only the Labor Law § 240 (1) claim. Supreme Court granted thecross motions and dismissed the complaint. Plaintiffs now appeal, focusing solely uponthe dismissal of their Labor Law §§ 240 (1) and 241 (6)claims.[FN1]
Labor Law § 240 (1) requires contractors and property owners toprovide safety devices adequate to protect construction workers against elevation-relatedhazards, and "[t]he failure to do so results in liability for any injuries proximately causedthereby" (Silvia v Bow TiePartners, LLC, 77 AD3d 1143, 1144 [2010]; see Jackson v Heitman Funds/191 Colonie LLC, 111 AD3d1208, 1211 [2013]). Plaintiff was so employed and may invoke the provisions of thestatute, notwithstanding that he was a part owner of third-party defendant (see VanBuskirk v State of New York, 303 AD2d 970, 971 [2003]). That being said, the factthat plaintiff was "injured while working above ground does not [necessarily] mean thatthe injury resulted from an elevation-related risk contemplated by" Labor Law§ 240 (1) (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977[2003]; see Auchampaugh vSyracuse Univ., 57 AD3d 1291, 1293 [2008]). It was, accordingly, incumbentupon him to show that his injuries resulted from such a hazard (see Ortiz v Varsity Holdings,LLC, 18 NY3d 335, 339 [2011]).
Supreme Court determined that his injuries did not flow from an elevation-relatedhazard, as plaintiff was not "required to work at an elevation" and could have stayedaway from the edge of the roof by directing the crane operator via cell phone (Broggy v Rockefeller Group,Inc., 8 NY3d 675, 681 [2007]). This determination, however, ran against theundisputed proof that plaintiff had to work somewhere on the roof in order to signal thecrane operator and that hand signaling was the usual method of doing so (see Soltero v City of NewYork, 93 AD3d 578, 578 [2012]; cf. Ortiz v Varsity Holdings, LLC, 18NY3d at 339-340; Broggy v Rockefeller Group, Inc., 8 NY3d at 681). Hisdecision to employ an accepted method of signaling while performing necessary work onthe roof, even if a safer method existed, constituted nothing more than "comparative faultthat is not a defense under the statute" (Williams v Town of Pittstown, 100 AD3d 1250, 1252[2012]; see Sulem v B.T.R. E. Greenbush, 187 AD2d 816, 818 [1992]).
Third-party defendant's assertion that plaintiff was provided with appropriate safetydevices is similarly unavailing. A parapet wall surrounded the edge of the roof, but "apermanent appurtenance to a building does not normally constitute the functionalequivalent of a scaffold or [*3]other safety device withinthe meaning of the statute" (Yost v Quartararo, 64 AD3d 1073, 1074 [2009]). Plaintiffcan also not be faulted for failing to use an available safety harness, as he did not have asufficient length of rope to tie it off securely (see Balzer v City of New York, 61 AD3d 796, 797-798[2009]; Desrosiers v Barry, Bette & Led Duke, Inc., 189 AD2d 947, 948[1993]). Contrary to third-party defendant's further suggestion, the failure to identifyanother safety device that could have prevented plaintiff's fall is irrelevant in establishingliability under a Labor Law § 240 (1) claim (see Zimmer v ChemungCounty Performing Arts, 65 NY2d 513, 523-524 [1985]). Thus, inasmuch asplaintiff fell because his work required him to work at a height, and "there is no view ofthe evidence to dispute or contradict a finding that the absence of safety equipment was aproximate cause of [plaintiff's] injuries," plaintiffs' motion for partial summary judgmentshould have been granted (Sulem v B.T.R. E. Greenbush, 187 AD2d at 818;see Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d at 978; Yost vQuartararo, 64 AD3d at 1074-1075; Tassone v Mid-Valley Oil Co., 291AD2d 623, 624 [2002], lv denied 100 NY2d 502 [2003]).[FN2]
We need not address the parties' contentions regarding Labor Law§ 241 (6), which are rendered academic in light of the grant of summaryjudgment upon the Labor Law § 240 (1) claim (see Yost vQuartararo, 64 AD3d at 1075; Covey v Iroquois Gas Transmission Sys., 218AD2d 197, 201 [1996], affd 89 NY2d 952 [1997]). As a final matter, defendantshave abandoned any contentions regarding their alternative request for summaryjudgment on the third-party complaint by failing to advance them in their brief on appeal(see Huen N.Y., Inc. v Board ofEduc. Clinton Cent. School Dist., 67 AD3d 1337, 1337-1338 [2009]).
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the order is modified,on the law, with costs to plaintiffs, by reversing so much thereof as (1) denied plaintiffs'motion for partial summary judgment, (2) granted defendants' cross motion for summaryjudgment dismissing the Labor Law § 240 (1) cause of action, and (3)granted third-party defendant's cross motion for partial summary judgment; cross motionsdenied to said extent, motion granted and summary judgment awarded to plaintiffs on theLabor Law § 240 (1) cause of action; and, as so modified, affirmed.
Footnote 1:Plaintiffs do notchallenge the dismissal of their Labor Law § 200 and common-lawnegligence claims on appeal, and we therefore deem any such arguments to have beenabandoned (see Boots v Bette& Cring, LLC, 124 AD3d 1119, 1119 n 1 [2015]).
Footnote 2:Plaintiff testified that helost his balance while he was turning to face the crane operator and fell over the wall, butdid not recall exactly how the fall occurred. The crane operator confirmed that plaintiffhad fallen at the time and place he described. Under these circumstances, an affidavit ofan expert who questioned whether a simple stumble would have been sufficient to causethe fall did not raise a credibility issue that would preclude a grant of summary judgmentto plaintiffs (see Hall v Conway, 241 AD2d 592, 593 [1997]; Rodriguez vForest City Jay St. Assoc., 234 AD2d 68, 69-70 [1996]).