Lazza v Harman Realty Brooklyn LLC

[*1] Lazza v Harman Realty Brooklyn LLC 2009 NY Slip Op 50149(U) [22 Misc 3d 1116(A)] Decided on January 20, 2009 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2009
Supreme Court, Kings County

Patrick Lazza and Mary Lynch, Plaintiffs,

against

Harman Realty Brooklyn LLC and Gamestop Inc., Defendants.



22678/07

Sylvia Hinds-Radix, J.

Upon the foregoing papers, plaintiffs Patrick Lazza and Mary Lynch move for an order, pursuant to CPLR 3212, granting summary judgment against defendants Harman Realty Brooklyn LLC and Gamestop Inc ("defendants") on the issue of liability under Labor Law §240. Defendants cross-move for an order, pursuant to CPLR 3212, granting them summary judgment, dismissing plaintiffs' causes of action under Labor Law §240(1), §241 (6), and Labor Law §200.[FN1]

Background

This is an action for personal injury arising out of an accident that occurred on December 29, 2005, when Patrick Lazza ("plaintiff") fell from a ladder at the premises located in a portion of 6713 18th Avenue, Brooklyn, New York. At the time of the accident, the premises was owned by Herman Realty Brooklyn, LLC ("Herman Realty") and leased by Gamestop Inc. ("Gamestop") for the purpose of operating a retail store to sell video games. Gamestop, in turn, hired Allrite Construction Company ("Allrite") to renovate the interior of the premises. On the day of the accident, plaintiff was employed by Allrite, as a carpenter, to perform renovation work at said premises. [*2]

In his bill of particulars, plaintiff alleges that the defendants were negligent in allowing the surface of the floor upon which the ladder was placed to become and remain in an uneven condition. In addition, plaintiff alleges that defendants failed to provide him with proper protection or safety devices in violation of Labor Law §240 (1).

According to plaintiff's deposition testimony given February 6, 2008, on the day of his accident, part of his work was to install a drop ceiling. Plaintiff intended to use a six-foot aluminum ladder in order to perform his work. The height of the drop ceiling was intended to be about ten feet from the floor. Plaintiff testified that his accident occurred as he was climbing the ladder. Specifically, plaintiff testified that he opened up the ladder and placed it on the floor. As he put his right foot on the third step of the ladder, he felt something "stuck" under the front part of his boot. Plaintiff testified that the ladder shook and he fell over backwards. Plaintiff also testified that the ladder fell to his right. Plaintiff described the floor upon which the ladder was placed as wooden with "waves" or "swelling". He testified that he did not inspect the ladder prior to it being set up. Further, plaintiff couldn't recall whether any part of the ladder was broken at the time of his accident or whether the area of the floor on which the ladder was placed had waves. Additionally, plaintiff testified that after his fall, "there was nothing under his boots". In his May 17, 2008 affidavit, plaintiff averred that "the floor surface in the premises was far from smooth and level". Plaintiff alleges to have sustained serious injuries as a result of the accident.

In addition to his deposition testimony and his affidavit, plaintiff proffers the sworn affidavit of Troy Stephens, who was employed as a carpenter by defendant Allrite at the time of plaintiff's accident. Although Mr. Stephens did not witness the actual accident, he averred that he and plaintiff were working fairly close to each other.

Mr. Stephens stated that around 10:30 a.m. or 11:00 a.m., he heard a noise and looked around. He stated that he noticed both the plaintiff and the ladder on which he was working on the ground. Mr. Stephens stated that he went over to plaintiff and "helped him up."

By summons and complaint, plaintiff commenced the instant action on or about June 22, 2007, against the defendants, alleging violations of Labor Law §240 (1), §241(6) and Labor Law §200. By order dated October 2, 2008, this court granted defendants' cross motion for summary judgment dismissing plaintiff's claims based on Labor Law §241 (6), and Labor Law §200 causes of action.

Labor Law §240 (1)

In moving to dismiss plaintiff's Labor Law § 240 (1) cause of action, defendants argue that plaintiff's own action was the sole proximate cause of the accident. Defendants also argue that based on all discovery and plaintiff's affidavit, there is no indication that there was any defect with respect to the ladder that would rise to a Labor Law §240 (1) violation. Defendants further argue that plaintiff's accident has nothing to do with the construction, placement and operation of the ladder. Additionally, defendants contend [*3]that "a fall from the third step, of three feet does not constitute a gravity related risk."

Labor Law § 240 (1) states, in relevant part, that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed . . ."

Labor Law § 240(1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners and general contractors and their agents who "are best situated to bear that responsibility" (id., at 500; see also, Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520). Moreover, "the duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross, 81 NY2d at 500; see also Haimes v New York Tel. Co., 46 NY2d 132, 136-137). Furthermore, the statute is to be construed as liberally as possible in order to accomplish its protective goals ( Martinez v City of New York, 93 NY2d 322, 326). However, not every worker who falls at a construction site . . . gives rise to the extraordinary protections of Labor Law § 240 (1) (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267). Rather, only those accidents proximately caused by a Labor Law § 240 (1) violation will result in the imposition of liability under the statute (Blake v Neighborhood Hous. Ser. of the New York City, 1 NY3d 280, 287). Where a gravity-related accident is caused solely by the plaintiff's own negligence rather than a violation of the statute, no liability will attach under Labor Law § 240 (1) (Blake, 1 NY3d 280, 289). Generally speaking, a sole proximate cause defense must be supported by evidence that the plaintiff either misused a safety device, removed an existing safety device, or failed to use an available safety device (see Weininger v Hagedorn & Co., 91 NY2d 958; Alvarez v Long Island Is. Fireproof Door Co., 305 AD2d 343, 244; Plass v Solotoff, 5 AD3d 365).

In support of its motion and in opposition to defendants' cross motion on the issue of Labor Law § 240 (1), plaintiff argues, among other things, that he suffered an elevation-related injury that was caused by defendants' failure to provide proper statutory safety devices. Specifically, plaintiff argues that the ladder on which he was standing did not afford him proper protection. Plaintiff further maintains that defendants were negligent in causing and allowing the surface of the floor upon which the ladder was [*4]placed to become and remain in an uneven condition. Accordingly, plaintiff alleges that his accident was caused by a Labor Law § 240 (1) violation.

Upon a review of the record and the parties' submissions the court finds that defendants have failed to demonstrate, as a matter of law, that the sole proximate cause of plaintiff's accident was his own conduct. Although defendants maintain that plaintiff's accident was caused by his own conduct in having something under his shoe, it is well settled that the movement or shifting of an unsecured ladder, scaffold, or other safety device constitutes prima facie evidence of a defect (Curte v City of New York, 21 AD3d 1050 [2005]; Granillo v Donna Karen Co., 17 AD3d 531[2005]). Plaintiff has also failed to demonstrate that defendants allowed the floor upon which the ladder was placed to become and remain in an uneven condition or that his accident was caused by defendants' failure to provide proper statutory safety devices. The mere fact that plaintiff fell from a ladder is insufficient, in and of itself, to establish as a matter of law, that defendants failed to provide proper or adequate statutory safety devices under Labor Law § 240 (1) (see Basmas v J.B.J. Energy Corp., AD2d 594, 595; Nelson v Ciba-Geigy, 268 AD2d 570). Rather, the question of whether the device at issue provided protection within the meaning of Labor Law Labor Law § 240 (1) is ordinarily a question of fact for the jury (see Garhartt v Niagara Mohawk Power Corp., 192 AD2d 1027; see also Plass v Solotoff, 283 AD2d 474; Blair v Rosen-Michaels, Inc., 146 AD2d 863, 865), except where the device collapses, moves, slips or otherwise fails to perform its function of supporting the worker or his materials (See Moreta v State, 272 AD2d 593; Dennis v Beltrone Construction Co., Inc., 195 AD2d 688).

Accordingly, under the circumstances in the instant case, the court finds that legitimate questions of fact exist as to whether the ladder was defective, whether the ladder was so placed as to give proper protection as required by the statute or whether plaintiff's own actions were the sole proximate cause of his accident.

Accordingly, that branch of defendants' cross motion which seeks summary judgment dismissing plaintiff's claim based on the issue of Labor Law §240 (1) is denied. Further, plaintiff's motion for summary judgment on the issue of liability on his Labor

Law §240 (1)action is also denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Pursuant to a short- form order of this court, dated October 2, 2008, defendants' cross-motion seeking dismissal of plaintiff's Labor Law §241 (6), and Labor Law §200 causes of action were dismissed. The court reserved decision on defendants' cross-motion to dismiss plaintiff's Labor Law §240 (1) claim.