Murray v David B. Lee & Co., Inc.

[*1] Murray v David B. Lee & Co., Inc. 2005 NY Slip Op 51019(U) Decided on May 12, 2005 Supreme Court, Onondaga County Centra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 12, 2005
Supreme Court, Onondaga County

Mark Murray, Plaintiff,

against

David B. Lee and Company, Inc., Defendant.



04-3570



MARTHA L. BERRY, ESQ.

SETRIGHT & LONGSTREET, LLP

Attorneys for Plaintiff

313 Montgomery Street

Syracuse, NY 13202

JAMES G. STEVENS, JR., ESQ.

SUGARMAN LAW FIRM

Attorneys for Defendant

360 S. Warren Street

Syracuse, NY 13202

John V. Centra, J.

This action arises out of a work-related accident that occurred on April 18, 2003 during the construction of a home located on Andrews Road in Skaneateles. Defendant was the general contractor. Plaintiff was employed by the roofing subcontractor on the project.

By this action, Plaintiff seeks damages due to his having slipped and fallen from a ladder. Plaintiff has moved for summary judgment on liability. Defendant has cross-moved to dismiss the complaint. Plaintiff has agreed to dismissal of the Labor Law §§200 and 241(6) causes of action as well as the cause [*2]of action for common law negligence.

Plaintiff and his foreman, Gerald Holbrook, a fellow employee, were in the process of replacing a piece of copper drip edge on the back of the house when the accident took place. Plaintiff was standing on a ladder which had been put in place by his foreman. The ladder was set on the ground and the feet of the letter were flipped up and dug into the ground. The ladder was leaning against the part of the roof where the soffit was to be installed.

The ladder slipped as Plaintiff was reaching to hammer a nail. Plaintiff had been holding onto the ladder with his legs, and when it slipped and flipped, Plaintiff initially was hanging upside down. Plaintiff then tried to grab the edge of the roof with his hands, but the ladder kicked out and Plaintiff fell to the ground.

Plaintiff argues that, because it is undisputed that (1) Defendant was the general contractor on the project, (2) Plaintiff was engaged in the erection or repair of a building or structure at the time of the accident, and (3) the accident resulted from an elevation-related risk, there are no triable issues of fact regarding Plaintiff's claim under Labor Law section 240 and Plaintiff is entitled to summary judgment on liability. Defendant disagrees and contends that Plaintiff's actions were the sole proximate cause of his injuries. In the alternative, Defendant submits there are questions of fact precluding summary judgment as there are differing versions of the accident.

The statement relied on by Defendant that allegedly demonstrates that Plaintiff's actions were the sole proximate cause of his accident and/or creates a question of fact is an unsworn statement of Gerald Holbrook. The affidavit of Gerald Holbrook submitted by Plaintiff in reply to Defendant's cross-motion refutes the statements in the unsworn document. The unsworn statement of Gerald Holbrook has no probative value. Thus, there is no issue of fact raised by that unsworn statement.

Defendant also argues that this is a recalcitrant worker case. In order to prove that Plaintiff was a recalcitrant worker, Defendant must establish that Plaintiff "'refused to use the safety devices that were provided by the owner or employer'". Scott v. Crystal Construction Corp., 1 AD3d 992, 993 (4th Dep't 2003) (quoting Gordon v. Eastern Ry. Supply, 82 NY2d 555, 563 [1993]). There is no allegation that Plaintiff deliberately refused to use safety devices at the jobsite. Thus, this defense [*3]must fail.

This is also not a sole proximate cause case. Defendant had a nondelegable duty to see that Plaintiff was using a properly secured ladder and that Plaintiff was properly secured while on the ladder. The accident occurred because the ladder slipped due to its not being properly secured, a violation by Defendant of its duty under Labor Law section 240. Further, Defendant has failed to raise a triable question of fact regarding liability under section 240 and has failed to establish a basis for summary judgment in its favor on this claim because the alleged unsworn statement of Mr. Holbrook is not proof in evidentiary form.

Thus, the court grants Plaintiff's motion for summary judgment on liability. Defendant's cross-motion for summary judgment dismissing the complaint is granted regarding the Labor Law §§200 and 241(6) causes of action as well as the cause of action for common law negligence. Defendant's cross-motion for dismissal of the Labor Law §240(1) cause of action is denied.

Plaintiff is to submit an Order on notice.

JOHN V. CENTRA

Supreme Court Justice

Dated: May 12, 2005

Syracuse, New York