Rodriguez v Skanska Usa Bldg., Inc.

[*1] Rodriguez v Skanska Usa Bldg., Inc. 2015 NY Slip Op 50201(U) Decided on February 23, 2015 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 23, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-1593 Q C

Juan Rodriguez, Appellant, -against

against

Skanska Usa Building, Inc., Respondent. SKANSKA USA BUILDING, INC. Third-Party Plaintiff, AMERICAN SECURED FENCING CORP., Third-Party Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered March 11, 2013. The order denied plaintiff's motion for summary judgment on the issue of liability on plaintiff's Labor Law § 240 (1) cause of action.

ORDERED that the order is reversed, without costs, and plaintiff's motion for summary judgment on the issue of liability on plaintiff's Labor Law § 240 (1) cause of action is granted.

This case arises from a construction site accident in which plaintiff, who had been assigned to work with third-party defendant American Secured Fencing Corp., fell from an overturned concrete Jersey barrier while in the course of removing an eight-foot high fence.

We find that plaintiff made a prima facie showing of liability on the part of defendant pursuant to Labor Law § 240 (1) (see Carino v Webster Place Assoc., LP, 45 AD3d 351 [2007]). It is undisputed that defendant was in charge of safety at the construction site and that the work in question should have been performed using a ladder or scaffold, but that the presence of Jersey barriers made it impossible to place a ladder or scaffold at the relevant section of the fence on the barrier side (cf. Broggy v Rockefeller Group, Inc., 8 NY3d 675 [2007]; Intriago v City of New York, 44 AD3d 1008 [2007]; Meade v Rock-McGraw, Inc., 307 AD2d 156 [2003]).

In opposition, defendant failed to raise a triable issue of fact. While an employee of defendant did testify at a deposition that he thought that the work in question could have been performed from the other side of the fence, where a ladder could have been set up, that employee had little personal knowledge of the particular fence being demolished or of the method of demolition. In any event, plaintiff's foreman testified that, on the morning of the accident, he and plaintiff had been working on the barrier side of the fence, standing on top of the Jersey barriers. There is nothing in the record to indicate that anyone told plaintiff not to stand on the barriers or suggested to plaintiff that he should have worked from the other side of the fence. Thus, the record case shows that, at the least, plaintiff had the tacit approval of his foreman for working from the barrier side of the fence and for standing on the Jersey barrier and, therefore, plaintiff cannot be considered the sole proximate cause of the accident (see Rico-Castro v Do & Co NY Catering, Inc., 60 AD3d 749 [2009]; Pichardo v Aurora Contrs., Inc., 29 AD3d 879 [2006]). Indeed, there is evidence that plaintiff may have been following the explicit directions of his foreman. As defendant was responsible for the overall safety of the project, we find that defendant's liability under Labor Law § 240 (1) has been established (see Barrios v City of New York, 75 AD3d 517 [2010]).

Defendant's remaining contentions lack merit.

Accordingly, the order is reversed and plaintiff's motion for summary judgment on the issue of liability on plaintiff's Labor Law § 240 (1) cause of action is granted.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: February 23, 2015