Chlebowski v Esber

[*1] Chlebowski v Esber 2009 NY Slip Op 50950(U) [23 Misc 3d 1126(A)] Decided on May 15, 2009 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2009
Supreme Court, Kings County

Bogdan Chlebowski, Plaintiff,

against

James Esber and Jane Fine, Defendants, James Esber and Jane Fine, Third-Party Plaintiffs, New York Store Fronts Inc., Third-Party Defendant.



22506/05



APPEARANCES

ATTORNEYS FOR PLAINTIFF

DINKES & SCHWITZER.

112 MADISON AVENUE

NEW YORK, NEW YORK 10016

(212) 683-3800

ATTORNEY FOR DEFENDANTS/THIRD-PARTY PLAINTIFFS

HERZFELD & RUBIN, P.C. 40 WALL STREET

NEW YORK, NEW YORK 10005

(212) 471-8500

Martin Schneier, J.

By Order dated January 28, 2008, the plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) cause of action was granted (Chlebowski v. Esber, 18 Misc 3d 819). This Order was affirmed by the Appellate Division, Second Department, on January 20, 2009 (Chlebowski v. Esber, 58 AD3d 662 [2d Dept 2009]). Defendants/third-party plaintiffs, James Esber and Jane Fine(hereinafter "defendants"), move, pursuant to CPLR § 2221, for leave to renew and modify the Order dated January 28, 2008 on the grounds of newly discovered evidence.

Background

Defendants/third party plaintiffs contracted with third-party defendant New York Store Fronts, Inc. (New York Store Fronts), to remove and replace imitation brick on the exterior of a building they owned. Plaintiff, employed by New York Store Fronts, while working at the building was standing on a closed stepladder on top of a scaffold platform when the scaffold suddenly moved, causing the plaintiff to fall 10 feet to the ground. The defendants had not provided the plaintiff with any safety devices.Based on these uncontroverted facts, the Court granted the plaintiff's motion for summary judgment on his Labor Law § 240(1) claim. Defendants move to renew the summary judgment motion on the grounds that newly discovered evidence indicates that the plaintiff was intoxicated at the time of the accident.

Discussion

Section 2221 of the CPLR states, in pertinent part: "(e) A motion for leave to renew:1.shall be identified specifically as such;2.shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and3.shall contain reasonable justification for the failure to present such facts on the prior motion."

Plaintiff argues that the motion for leave to renew should be denied because the defendants' motion does not contain "reasonable justification" [*2]for the failure to present the allegedly newly discovered evidence as is required by CPLR § 2221(e)(3). The Court finds it unnecessary to resolve this issue because this motion should be denied on its merits.

Labor Law Section 240(1) provides, in pertinent part, that: "All contractors and owners.....who contract for

but do not direct or control the work, in the erection, demolition.....of a building or structureshall furnish or erect, or cause to be furnished orerected for the performance of such labor, scaffolding,hoists, stays, ladders, slings, hangers, blocks, pulleys,irons, ropes and other devices which shall be so constructed,placed and operated as to give protection to a person soemployed."

In order to recover on a cause of action pursuant to Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of the accident (Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006]). Once a violation and proximate cause are established, the liability of the owner and general contractor is absolute in the sense that the recovery will not be reduced by any contributory negligence on the part of the plaintiff (Bland v. Manocherian, 66 NY2d 452, 459 [1985]).

Where there is no violation or, the violation is not a proximate cause of the accident, there is no liability pursuant to the statute. As the Court of Appeals has explained: "Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation."

(Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 290-291, [2003]). Thus, if there is a violation of the statute because of the lack of safety devices and this violation was demonstrated to have been a proximate cause of plaintiff's accident, the plaintiff's intoxication was not the sole proximate cause of his injuries (Podbielski v. KMO-361 [*3]Realty Associates, 294 AD2d 552 [2d Dept 2002]).

In the instant case, this Court and the Appellate Division have found that the defendants violated the statute by not providing the plaintiff with any safety devices and their violation was a proximate cause of his injuries. Accordingly, any evidence that the plaintiff was intoxicated can have no bearing on the defendants' liability pursuant to Labor Law Section 240(1).

Conclusion

Based on the foregoing, the motion for leave to renew by defendants/third-party plaintiffs is granted. Upon renewal the Court adheres to its original determination as affirmed by the Appellate Division. The stay contained in the Order to show cause is vacated.

This constitutes the Decision and Order of the Court.

_____________________

J.S.C.

May 15, 2009