Mason v Herbert Arnold Duke II Revocable Trust
Annotate this CaseDecided on March 24, 2017
Supreme Court, Chautauqua County
Kimberly Mason & JAMES MASON, Plaintiffs, vs.
against
Herbert Arnold Duke II Revocable Trust, Defendants.
K1-2014-1530
APPEARANCES:
LOSI & GANGI
Attorneys for Plaintiffs
Harry Modeas, Esq., of Counsel
KENNY SHELTON LIPTAK NOWAK LLP
Attorneys for defendant and Third-Party Plaintiff
Herbert Arnold Duke II Revocable Trust
Amanda L. Machacek, Esq., of Counsel
GOLDBERG SEGALLA LLP
Attorneys for Third-Party Defendant
United Way of Southern Chautauqua County
Michael E. Applebaum, Esq., of Counsel.
Frank A. Sedita III, J.
The principal issue before the court is whether it can decide upon plaintiff's scaffold law claim as a matter of law.
This lawsuit stems from a fall from a ladder at the Tew Mansion (the mansion) in the City of Jamestown. Originally built in 1885 as the residence of a prominent local banker, the three-story mansion was owned by defendant Herbert Arnold Duke II Revocable Trust (the Trust) and used as an office building on July 26, 2013, the day of the incident. The United Way of Southern Chautauqua County (United Way) owned the mansion before the Trust and was the mansion's principal tenant at the time of the incident.
Plaintiff Kimberly Mason cleaned the summer residence of Herbert Arnold Duke II (the principal trustee of the Trust) and his wife, Elizabeth Flowers. Ms. Mason accepted Flowers' offer to clean the mansion on the day of the incident. As detailed below, there are contrasting versions regarding the scope of Ms. Mason's duties that day.
According Ms. Mason's deposition testimony, Flowers asked her to clean the mansion to improve its commercial marketability as the Trust was hoping to lease vacant office space to a [*2]prospective tenant. Ms. Mason claims she was told there was, "a lot of cleaning to be done" and that, "everything needed to be cleaned," including both the interior and exterior sides of tall entranceway doors and windows on the first floor of the mansion. Ms. Mason added that Flowers said, "she wanted the doors thoroughly cleaned before [I] left." Ms. Mason also testified she was supplied with, "a push broom, broom, dusters with long stems, cleaning tools, buckets and mops," for the tasks expected to be performed. Ms. Mason understood she had until 5:00pm to complete her work.
Although none of the attorneys asked her about extension poles (i.e. devices commonly used for washing otherwise unreachable windows), Ms. Mason was questioned about how she came upon a ladder. Ms. Mason claimed she asked a United Way employee whether she could borrow one when advised that the building would be closing at 4:00pm. It is unclear whether Ms. Mason requested the ladder as a time-saving shortcut or because it was necessary to complete her assigned tasks. In either event, the United Way employee purportedly informed Ms. Mason where a ladder was located and Ms. Mason herself retrieved it.
Flowers remembers events differently. According to her deposition testimony, Ms. Mason was only asked to do "housekeeping" at the mansion and was instructed to vacuum, dust, wipe off the staircase railing, sweep the front porch and, "stuff like that." Flowers directed Ms. Mason to a closet where supplies were kept, including "extension poles." No further questions were asked about these devices, including for example, including whether they would have accomplished the task of cleaning tall doors and windows without the need for a ladder.
Flowers' insisted that it was the tenants' responsibility to clean the entranceways and the windows. Flowers also indicated she did not request Ms. Mason to clean the tall doors and windows, nor would she have done so. Ms. Mason lends a degree of corroboration to these claims because, according to her, Flowers uttered, "I didn't want you to do that," when Ms. Mason reported that she fallen off a ladder while cleaning windows.
Flowers further testified that she did not provide Ms. Mason with a ladder, nor did they discuss the same. Flowers also adamantly denied ever asking anyone from the United Way to supply a ladder. Although these claims are not contradicted by Ms. Mason, they are at odds with the deposition testimony of another witness.
United Way employee Jennifer Peters characterized the duties of their weekly "cleaning lady" (who was someone other than Ms. Mason) as "light housekeeping," which did not encompass cleaning the first floor windows or cleaning outside. Peters claimed to have witnessed Flowers ask Bill Price (another United Way employee), whether there was a ladder that Ms. Mason could use for cleaning. According to Peters, Flowers said, "that would be great," when informed a ladder was on the premises and Price carried it out to the front hallway. According to Bill Price, however, Flowers never asked him about a ladder. Instead, it was Ms. Mason who asked about a ladder for cleaning windows. Price denied he retrieved the ladder for Mason but admitted he informed her of its location.
Ms. Mason's fall from the ladder went unwitnessed, save for the plaintiff herself. According to her deposition testimony, she began by cleaning the interior of the first floor entranceway doors — which had windows inserted within the frame of the door — in an "upward" fashion. The ladder was utilized when she could no longer reach the upper portions of the doors/windows. After successfully completing the interior, she went outside and onto the first floor porch to clean the exterior of the doors/windows, using the same methodology. Although it was, "a nice, sunny day," a "sudden [and] big gust of wind" blew as she was descending the ladder. It appears (although it is not completely clear) from her deposition testimony that the ladder somehow moved or wobbled. Ms. Mason contemporaneously fell to the porch floor, fracturing her wrist. It should be noted that all knowledgeable witnesses, including Ms. Mason, contend the ladder was non-defective.
The record is unclear whether the wind caused the otherwise sturdy ladder to move to such a degree that it caused the fall; whether the purported burst of wind caused Ms. Mason to lose her balance as she stood on the ladder; whether it was a surprised and faltering Ms. Mason [*3]that caused the ladder to wobble; or, whether it was a combination of these factors that contributed to the fall. As previously noted, there also is contradictory testimony regarding whether Ms. Mason was ever supposed to clean the tall door/windows in the first place. Assuming that she was, the record is unclear whether a ladder was necessary to complete that task or whether the extension poles would have done the trick. Completely absent from the record is testimony or other proof regarding whether another safety device was necessary or would have prevented the fall.
Ms. Mason brought suit against the Trust, alleging common law negligence as well as violations of sections 200, 202, 240(1) and 241(6) of New York State Labor Law. Mr. Mason also brought a derivative action against defendants. The Trust denied the allegations, asserted affirmative defenses, and brought an indemnification action against the United Way.
Defendants have moved for summary judgment. Plaintiffs oppose the motion and have cross-moved for summary judgment in their favor. Oral argument was heard on October 24, 2016. Counsel requested the court hold its decision in abeyance until at least February of 2017, so they could avail themselves of private mediation. These efforts have reportedly failed.
Defendants contend the following: (1) Ms. Mason's premises liability claim and claim under Labor Law §200, should be dismissed because defendants neither had notice of a purportedly dangerous condition nor breached a duty of care owed to Ms. Mason; (2) Ms. Mason's claim under Labor Law §202 should be dismissed because that statute, which specifically protects commercial window washers, does not apply to buildings of three stories or less located in a city, like Jamestown, with a population of less than 40,000; (3) Ms. Mason's claim under Labor Law §241(6) should be dismissed because she was not involved in construction, demolition or excavation at the time of her fall; (4) Ms. Mason's claim under Labor Law §240(1) should be dismissed because she was merely engaged in routine housecleaning and/or her fall was unforeseeable; and, (5) Mr. Mason's derivative claim should be dismissed because all of Mrs. Mason's claims should be dismissed.
Plaintiffs do not seriously contest the efforts to dismiss their common law negligence claim as well as their claims under Labor Law §200, §202 and §241(6). Plaintiffs, however, vigorously oppose defendants' efforts to dismiss the Labor Law §240(1) claim and move for summary judgment in their favor, contending that Ms. Mason was engaged in a statutorily protected activity and that the Trust's statutory violation was a proximate cause of her injury. Although the parties say little in their papers about Mr. Mason's derivative claim, they seem to agree that it's viability is dependent upon the viability of Ms. Mason's Labor Law §240(1) claim.
Summary judgment permits a party to show — by affidavit, deposition testimony or other evidence — that there are no material issues of fact to be tried and that judgment may be directed as a matter of law (Brill v. City of New York, 2 NY3d 648, 650-651). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any genuine, material issues of fact. When such a showing has been made, the burden shifts to the party opposing summary judgment to produce evidentiary proof sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hospital, 68 NY2d 320, 324-325).
Issue-finding, as opposed to issue determination, is the key to summary judgment and the motion papers should be scrutinized carefully in the light most favorable to the party opposing the motion (Gitlin v. Chirinkin, 98 AD3d 561; also see, Smith v. County of Monroe, 299 AD2d 984; Powell v. Tarantino Foods, 234 AD2d 989). Summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence or where there are issues of credibility (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339; Katz v. Beil, 142 AD3d 957, 964; Open Door Foods, LLC v. Pasta Machines, Inc., 136 AD3d 1002, 1005).
Defendants have made a prima facie showing of entitlement to judgment as a matter of law regarding plaintiffs' common law negligence claim as well as their claims under Labor Law [*4]§200, §202 and §241(6). Plaintiffs, in turn, have failed to produce any evidentiary proof sufficient to establish the existence of genuine material issues of fact regarding these claims. Accordingly, defendants' summary judgment motion regarding these claims is granted.
As previously noted, the principal question before the court is whether summary judgment, in favor of either party, can be granted relative to plaintiffs' claim under Labor Law §240(1). Commonly referred to as the "scaffold law," the statute provides:
"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."One of the most frequent sources of litigation in the New York courts, the scaffold law provides rights to certain workers going well beyond the common law. The purpose of the statute is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves. Although the statute is to be liberally construed, its extraordinary protections apply only to a narrow class of dangers. Thus, an accident alone does not trigger absolute liability, strict liability or liability as a matter of law. In order to obtain summary judgment on its scaffold law claim, Ms. Mason must demonstrate, as a matter of law, that the statute was violated and that the statutory violation was a proximate cause of her injuries. In order to obtain summary judgment in its favor, the defendants must demonstrate, as a matter of law, that the statute was not violated or that something other than a statutory violation was the sole proximate cause of Ms. Mason's injuries (see, Saint v. Syracuse Supply Company, 25 NY3d 117; Ortiz v. Varsity Holdings, LLC, 18 NY3d 335; Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280).
Statutory coverage presupposes statutory violation. The critical inquiry in determining coverage under the statute is what type of work the plaintiff was performing at the time of injury (Panek v. County of Albany, 99 NY2d 452, 457; Wicks v. Trigen-Syracuse Energy Corporation, 64 AD3d 75, 79). Routine household cleaning and maintenance — such as the dusting of shelves or the washing of windows — is not encompassed by the statute (see, Soto v. J. Crew Inc., 21 NY3d 562; Dahar v. Holland Ladder & Manufacturing Company, 18 NY3d 521, 525; Brown v. Christopher Street Owners Corp., 87 NY2d 938). The statute can, however, be violated when an employer fails to provide proper ladders to workers injured while cleaning offices (see, Stanley v. Carrier Corporation, 303 AD2d 1022).
Statutory violation turns on whether a particular window-washing task posed an elevation-related risk of the kind that the safety devices listed in Labor Law §240(1) protect against. Plaintiffs bear the burden of showing that an elevation-related risk existed (i.e. that Ms. Mason was tasked with cleaning tall doors/windows) and that the Trust (as part of its non-delegable duty to protect the worker) did not provide adequate safety devices. Ms. Mason must also show that she was obliged to work in an elevated manner — as opposed to standing on the floor and using extension devices — to wash the doors/windows (see, Nicometi v. The Vineyards of Fredonia, LLC, 25 NY3d 90, 97; Ortiz v. Varsity Holdings, LLC, 18 NY3d 335; Salazar v. Novalex Contracting Co., 18 NY3d 134, 139; Swiderska v. New York University, 10 NY3d 792; Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681).
Questions of fact abound regarding whether the work activity was encompassed by the statute and whether the statute was violated. If Ms. Mason's testimony is credited regarding the scope and purpose her expected duties — the cleaning of tall doors/windows at a commercial building for a commercial purpose — then it would appear she was engaged in commercial window cleaning rather than routine, domestic window washing (see, Cruz v. Bridge Harbor Heights Associates, 249 AD2d 44; Domasszowec v. Residential Management Group, 135 AD3d 572). The court, however, cannot discard Flowers' testimony in this regard, namely, that Ms. [*5]Mason was neither expected nor tasked with cleaning the doors/windows in question. Clearly, such a central dispute creates an issue of fact regarding whether a statutory violation occurred. Plaintiffs have also failed to definitively show that using a ladder to clean the door/window was necessary and unavoidable, especially in light of testimony that Ms. Mason was supplied with an extension pole.
Questions of fact also exist regarding causation. It is well-settled that defendants are liable for all normal and foreseeable consequences of their acts. It is also well-settled that an independent intervening act may constitute a superseding cause sufficient to relieve a defendant of liability, if it is of such an extraordinary nature or so attenuated from the his conduct that responsibility for the injury should not reasonably be attributed to him (Gordon v. Eastern Railway Supply, 82 NY2d 555, 561). Generally, issues of foreseeability and proximate cause are questions of fact appropriate for a jury to decide (Joblon v. Solow, 23 F. Supp. 2d 411, 413; Paul v. Cooper, 45 AD3d 1485, 1487). It cannot be said that a gust of wind causing a ladder to wobble and/or causing an elevated, outdoor window washer to fall, was an unforeseeable event as a matter of law. Nor can it be said that such an event, which Ms. Mason herself described as "sudden" and suggested was unexpected given that day's pleasant weather conditions, was foreseeable as a matter of law.
None of the parties, in sum, are entitled to summary judgment relative to Ms. Mason's scaffold law claim. Insofar as a spouse's derivative claim is dependent upon the cause of action of the injured party, Mr. Mason's claim also survives (Spose v. Ragu Foods, Inc., 124 AD2d 980).
Jury selection shall take place on June 2, 2017, with proof to be taken from June 6-9, 2017. All counsel shall provide expert disclosure, if any, at least thirty days prior to jury selection; i.e. by May 2, 2017. Motions relative to the sufficiency of expert disclosure and/or in Limine shall be made returnable no later than Monday, May 22, 2017 at 10:00am. Papers in support of said motions must be served upon the court and opposing counsel no later than eight business days before the return date, while responding papers must be served upon the court and opposing counsel no later than two business days before the return date. A final pre-trial conference shall also be held on May 22, 2017 at 10:00am in Mayville. Should the parties wish to submit Requests to Charge and Proposed Verdict Sheets, they must be provided to the court no later than May 22, 2017.
The foregoing shall constitute the order of this court.
Dated: March 24, 2017
HON. FRANK A. SEDITA, III
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
