Stanczyk v Orange Stone Co., LLC
Annotate this CaseDecided on November 6, 2008
Supreme Court, Queens County
Marek Stanczyk
against
Orange Stone Co., LLC, et al.
2907 2007
Duane A. Hart, J.
In December 2006, plaintiff, an employee of nonparty Lemode Plumbing
(Lemode), was injured in a fall when the ladder he was working on slid out from under him. He
was performing plumbing work on premises owned by defendant Metro at the time of the
accident. Thereafter, plaintiff commenced this action to recover damages, alleging violations of
Labor Law §§ 200; 240(1); and 241(6), and common-law negligence. The action was
subsequently discontinued against Orange Stone Company, LLC.
Labor Law § 240(1) provides that contractors, owners and their agents "shall furnish or [*2]erect, or cause to be furnished or erected ... scaffolding, hoists, stays, ladders ... and other devices which shall be so constructed, placed and operated as to give proper protection" to workers employed on the premises. Owners and contractors can be liable for violations of Labor Law § 240(1) regardless of whether they had control or supervision over the work (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 [2003]; Ross v Curtis Palmer, 81 NY2d 494, 500 [1993]). A prima facie case under Labor Law § 240(1) requires a showing that a defendant's statutory violation was a proximate cause of the plaintiff's injury (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d at 289; Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]).
Plaintiff has established a prima facie violation of Labor Law § 240(1) through his undisputed deposition testimony. He testified that he spoke on the telephone to defendant Metro's building supervisor of the subject premises, who told him to use ladders that were located in the basement. After climbing one of the unsecured ladders, while plaintiff was working in the ceiling, the ladder slid and he fell to the ground. He testified that the ladder involved in the accident did not have rubber feet to keep it from sliding. Therefore, plaintiff has established that he was not provided with "proper protection" within the meaning of Labor Law § 240(1) (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d at 289; Gordon v Eastern Ry. Supply, 82 NY2d at 559).
In opposition, defendants rely on plaintiff's deposition testimony to argue that plaintiff's negligence was the sole proximate cause of the accident. Defendants contend that plaintiff was his own supervisor, he knowingly used a defective ladder, and that plaintiff knew that, had he requested it, he could have gotten a proper ladder from Lemode, which was located approximately 30 to 40 minutes away. They rely on various cases in which the plaintiffs were found to be the sole proximate cause of their injuries (Robinson v East Med. Ctr., LP, 6 NY3d 550 [2006]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]; Gittleson v Cool Wind Ventilation Corp., 46 AD3d 855 [2007], lv denied 10 NY3d 715 [2008]). However, these cases are factually distinguishable from the instant case because in these cases, each plaintiff chose not to use safety devices that were available at the work site. Defendants' reliance on Montgomery v Federal Express Corp. (4 NY3d 805 [2005]), and Egan v Monadnock Constr., Inc. (43 AD3d 692 [2007], lv denied 10 NY3d 706 [2008]), is also misplaced because, although in each of these cases ladders were not available in the "immediate vicinity" in which the plaintiff was working, there were, nevertheless, appropriate ladders available at the work site (Egan v Monadnock Constr., Inc., 43 AD3d at 693; see Montgomery v Federal Express Corp., 4 NY3d at 806).
In the instant action, aside from the ladders that plaintiff was instructed to use, the only other ladder available to him at the work site was a six-foot A-frame ladder which was loaded onto his vehicle. This ladder was not an appropriate safety device because it would not have enabled him to reach the ceiling, which was approximately 15 feet high. Therefore, since defendants have not demonstrated that there was a more appropriate safety device that was available to plaintiff at the work site, it cannot be said that it was solely plaintiff's negligence that was the proximate cause of the accident. Thus, plaintiff's motion seeking partial summary [*3]judgment on his cause of action under Labor Law § 240(1) is granted and the branch of defendants' cross motion for summary judgment seeking dismissal of this cause of action is denied.
Under Labor Law § 241(6) all contractors and owners must provide workers engaged in "construction, excavation or demolition work" with "reasonable and adequate protection and safety" in areas where such work is being performed. The duty to comply with this section is nondelegable and contractors and owners who contract for but who do not supervise or control said work may still be held liable for injuries on the premises (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502). "In order to establish liability under Labor Law § 241(6), a plaintiff must demonstrate that a defendant's violation of a specific rule or regulation [promulgated by the Commissioner of the Department of Labor], was a proximate cause of the accident" (Mercado v TPT Brooklyn Assoc., LLC, 38 AD3d 732, 733 [2007]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502). In his bill of particulars, plaintiff predicates his cause of action under Labor Law § 241(6) upon violations of 12 NYCRR 23-1.21(b) (3) (iv) and (b) (4) (I), (ii) and (iv). 12 NYCRR 23-1.21 is sufficiently specific to support a cause of action under Labor Law § 241(6) (see Riccio v NHT Owners, LLC, 51 AD3d 897, 899 [2008]; Jicheng Liu v Sanford Tower Condominium, Inc., 35 AD3d 378, 379 [2006]).
Two of the four alleged violations of 12 NYCRR 23-1.21 are applicable to the facts of the instant case. 12 NYCRR 23-1.21(b) (3) (iv) applies because it provides for ladder maintenance so as to prevent ladder failure and plaintiff's accident involved a ladder which did not have rubber feet to keep it from sliding. 12 NYCRR 23-1.21(b) (4) (iv), which provides for ladders to be secured when work is being performed on them in excess of 10 feet above the ground, is applicable because plaintiff alleges that he was working approximately 12 feet above the ground while on an unsecured ladder. Plaintiff's allegations that defendants violated these two sections (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502), serve to defeat the branch of defendants' cross motion for summary judgment seeking dismissal of plaintiff's cause of action under Labor Law § 241(6). Defendants have also failed to establish, as a matter of law, that they complied with the applicable sections noted above because they have not demonstrated that the ladder involved in plaintiff's accident was equipped with rubber feet or that it was secured while plaintiff worked on it in excess of 12 feet above the ground (see e.g. Haider v Davis, 35 AD3d 363, 364-365 [2006]). Thus, the branch of defendants' cross motion for summary judgment seeking dismissal of plaintiff's cause of action under Labor Law § 241(6) is denied.
Labor Law § 200 "is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" (Ortega v Puccia, ___ AD3d ___, ___, 2008 NY Slip Op 08305, *4 [Oct 28, 2008]). In cases involving the manner, "methods or materials of the work," which may include the use of an allegedly defective device, liability is based on whether "the party to be charged had the authority to supervise or control the performance of the work" (id. at *5; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). When such control or supervision is shown, an owner may be liable for [*4]common-law negligence and under Labor Law § 200 (see Lazier v Strickland Ave. Corp., 50 AD3d 641, 642 [2008], lv denied 10 NY3d 717 [2008]).
The record reflects that defendant Metro is the owner of the subject premises. Plaintiff's undisputed testimony is that defendant Metro's building supervisor directed him to use the ladders located in the basement of the subject premises. He also testified that the ladder involved in the accident slid because it did not have rubber feet. Defendants have not submitted any evidence to the contrary; they have not demonstrated that they did not provide the ladder involved in the accident or that they did not instruct plaintiff to use it. Their claim in their attorney's affirmation that "no one instructed plaintiff to use the device in question" is of "no intrinsic evidentiary value" on their cross motion (Morales v Coram Materials Corp., 51 AD3d at 96; see Zuckerman v City of New York, 49 NY2d at 563). Therefore, defendants have failed to satisfy their "prima facie burden of [] entitlement to judgment as a matter of law by demonstrating that [they] did not direct or control the means or methods of [] plaintiff's work" (Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 620 [2008]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Thus, the branch of defendants' cross motion for summary judgment seeking dismissal of plaintiff's causes of action for common-law negligence and violation of Labor Law § 200 is denied.
Accordingly, plaintiff motion for summary judgment on the cause of action for violation of
Labor Law § 240(1) is granted. The action shall be severed from the remaining causes of
action and set down for an inquest on the issue of damages. Defendants' cross motion for
summary judgment seeking dismissal of plaintiff's complaint is denied.
Dated: November 6, 2008
J.S.C.
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