Nane v Dormitory Auth. of State of N.Y.

[*1] Nane v Dormitory Auth. of State of N.Y. 2007 NY Slip Op 51123(U) [15 Misc 3d 1143(A)] Decided on May 31, 2007 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2007
Supreme Court, Richmond County

Fredi Nane, Plaintiff,

against

The Dormitory Authority of the State of New York, Defendant,



12936/04

Judith N. McMahon, J.

On December 9, 2003, the plaintiff allegedly was injured on a construction site at 930 Willowbrook Road, Building 11, Staten Island, New York. The owner of the building was the Dormitory Authority of the State of New York [DASNY]. The plaintiff was an employee of Marfi Contracting Corporation, the roofing contractor. The plaintiff was traversing along a series of planks at different elevations affixed to the roof with brackets, when one of the planks collapsed, causing him to fall 12 feet to the ground. The plaintiff had disconnected his safety lanyard in order to move to a lower elevation plank and had not yet reconnected the lanyard before the plank collapsed.

In January, 2004, the plaintiff commenced this action against DASNY alleging violations of Labor Law §§ 200, 240(1) and 241(6) and common law negligence. After issue was joined by service of an answer and the completion of discovery, the plaintiff moved for partial summary judgment on the issue of liability on the cause of action asserting a violation of Labor Law § 240(1). DASNY cross-moved for partial summary judgment dismissing the cause of action alleging a violation of Labor Law 240(1).

In January, 2007, after the plaintiff filed the note of issue and served its motion for partial summary judgment on the issue of liability, DASNY commenced a third-party action for contractual indemnification against the plaintiff's employer Marfi Contracting Corporation and [*2]Marfi Contracting, LLC. Issue has been joined on the third-party action. The plaintiff now moves pursuant to CPLR 603 to sever the third-party action.

Labor Law § 240(1) imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards (see, Misseritti v. Mark IV Constr., Co., 86 NY2d 487, 49-91 [1995]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-01 [1993]; Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Proof of a collapse of a safety device constitutes a prima facie showing that the statute was violated, thereby establishing the plaintiff's entitlement to judgment as a matter of law on the issue of liability (see, Dos Santos v. State of New York, 300 AD2d 434 [2d Dept. 2002]; Pineda v. Kechek Realty Corp., 201 AD2d 353 [2d Dept. 2001]; Bras v. Atlas Constr. Corp., 166 AD2d 401 [1990]). The burden then shifts to the defendant to present evidence sufficient to raise a triable issue of fact as to whether there was no statutory violation and the worker's conduct was the sole proximate cause of the accident (see, Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 289 [2003]).

Contrary to DASNY's contention, there is no evidence that the plaintiff was recalcitrant in the sense that he deliberately refused to use the available safety lanyard (see, Gordon v. Eastern Ry. Supply, 82 NY2d 555, 562-63 [1993]). The Second Department has held in a case analogous to the instant case that the proximate cause of the accident was the collapse of the scaffold and not the plaintiff's temporary removal of his safety harness (see, Moniuszko v. Chatham Green, Inc., 24 AD3d 638 [2d Dept. 2005]; see also, Aragon v. 233 West 21st Street, Inc., 201 AD2d 353 [2d Dept. 1994]). Additionally, the Second Department found that even if the plaintiff was partially at fault, a worker's contributory negligence is not a defense to a Labor Law § 240(1) claim (see, Moniuszko v. Chatham Green, Inc., 24 AD3d 638, supra; see also, Stolt v. General Foods Corp., 81 NY2d 918 [1993]). Accordingly, the plaintiff's motion for partial summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) is granted and DASNY's cross-motion for partial summary judgment dismissing the Labor Law § 240(1) cause of action is denied.

Turning to the plaintiff's motion to sever the third-party action for contractual indemnification, the court finds that severance is appropriate in the instant case. The plaintiff is ready to proceed to trial on the sole issue of damages, while there is no evidence that discovery has even begun in connection with the claim for contractual indemnification. Thus, severance is appropriate as it will avoid prejudicing the plaintiff by delaying the trial, and it will not harm the defendant/third-party plaintiff DASNY (see, Abreo v. Baez, 29 AD3d 933 [2d Dept. 2006]; Singh v. City of New York, 294 AD2d 422 [2d Dept. 2002]).

Accordingly, it is,

ORDERED that the plaintiff's motion for partial summary judgment on the issue of liability on the cause of action based on a violation of Labor Law § 240(1) is granted; and it is further,

ORDERED that the defendant's motion for partial summary judgment dismissing the cause of action based on violation of Labor Law § 240(1) is denied; and it is further,

ORDERED that the plaintiff's motion pursuant to CPLR 603 to sever the third-party complaint is granted.

THIS IS THE DECISION AND ORDER OF THE COURT. [*3]

EN T E R,

Dated: May 31, 2007

J.S.C.