Vitolo v City of New York

Vitolo v City of New York 2015 NY Slip Op 04563 Decided on May 28, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 28, 2015
Andrias, J.P., Moskowitz, DeGrasse, Gische, Kapnick, JJ.
15251 305451/11

[*1] Dominick Vitolo, Plaintiff-Respondent, Clare Vitolo, Plaintiff,

v

The City of New York, et al., Defendants-Appellants.

Cerrusi & Spring, White Plains (Joseph Porretto of counsel), for appellants.

Pellegrini and Associates, LLC, New York (Juan C. Restrepo-Rodriguez of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered September 23, 2014, which, insofar as appealed from, denied defendants' motion for summary judgment dismissing so much of plaintiff's Labor Law § 241(6) cause of action as is predicated on Industrial Code (12 NYCRR) § 23-5.1(h), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

12 NYCRR 23-5.1(h) provides that "[e]very scaffold shall be erected and removed under the supervision of a designated person." "Designated person" is defined as "[a] person selected and directed by an employer or his authorized agent to perform a specific task or duty" (12 NYCRR 23-1.4[b][17]).

Regardless of whether or not plaintiff was the designated person, given his experience and qualifications in building scaffolds, any failure to so designate someone was not a proximate cause of plaintiff's accident (see e.g. Atkinson v State of New York, 49 AD3d 988 [3d Dept 2008]).

Plaintiff was injured when he attempted to drag the platform by himself while standing on the braces of the scaffold, rather than waiting for another worker to return. There is simply no basis to conclude that plaintiff's accident was in any way the result of someone failing to adequately supervise him.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 28, 2015

CLERK