Lee v SS. Cosmas & Damian Human Servs. Ctr., Inc.
Annotate this CaseDecided on December 19, 2011
Supreme Court, Richmond County
Kenneth Lee, Plaintiff(s),
against
SS. Cosmas and Damian Human Services Center, Inc., Defendant(s).
102321/2009
Philip G. Minardo, J.
Plaintiff KENNETH LEE ("LEE") commenced this personal injury action in order to [*2]recover for damages that he allegedly sustained as a result of his falling from a four-foot A-frame stepladder while replacing an electrical light fixture at premises owned by defendant/third-party plaintiff SS. COSMAS AND DAMIAN HUMAN SERVICES CENTER, INC. ("COSMAS"). LEE was an employee of third-party defendant CATELLO ELECTRICAL CONTRACTING, INC. ("CATELLO") at the time of the accident.
LEE claims that he lost his balance and was caused to fall backwards off the third rung of the four foot ladder (one rung below the top of the ladder) as he was using both of his hands to pull a light fixture off a wall located in a stairwell of the building on a landing between floors. The fixture was approximately six feet above the landing and in order to remove the fixture it was allegedly necessary to "chop" the wall with pliers and/or a screwdriver as the fixture had been installed with a nail gun. It is uncontroverted that all of the equipment used by LEE, including the subject ladde, was provided to him by his employer CATELLO.
LEE has asserted claims against COSMAS for negligence and alleged violations of Labor Law §§200, 240(1), and 241(6). COSMAS moves for summary judgment, pursuant to CPLR 3212 to dismiss all of LEE's causes of action and LEE cross-moves for summary judgment, pursuant to CPLR 3212, on the issue of liability.
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 material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" Chance v. Felder, 33 AD3d 645, 645-646 [2006]).
LABOR LAW §200
"Labor Law §200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (Hart v. Commack Hotel, LLC, 85 AD3d 1117, 1118 [2011] quoting McKee v. Great Atl. & Pac. Tea Co., 73 AD3d 872, 873 [2010]). As LEE's claims arise out of the alleged defects or dangers in the methods or materials of the work, he must establish that COSMAS "had the authority to supervise or control the performance of the work" (Hart, supra., at 1118).
Plaintiff contends that there exists a genuine issue of material fact of whether or not COSMAS exercised supervision and control over the work. Specifically, plaintiff alleges that a COSMAS employee "showed" the CATELLO employees (including plaintiff) where they would be working and identified the fixtures that required replacement. However, plaintiff fails to identify any evidence which demonstrates that COSMAS actually supervised or controlled the work being performed.
Accordingly, as a result of the absence of any triable issue of fact, COSMAS is entitled to summary judgment dismissing plaintiff's causes of action alleging common-law negligence and violations of Labor Law §200 by establishing, as a matter of law, that LEE "was injured, not by a dangerous condition, but by the methods or materials of his work, and that COSMAS did not have the authority to supervise or control the performance of his work" (Fiallos v. Vin's Crown Realty Assoc., 70 AD3d 630 [2010].
LABOR LAW §241(6)
Labor Law §241(6) requires contractors, owners, and agents "to provide reasonable and [*3]adequate protection and safety for workers and to comply with the specific rules and regulations promulgated by the Commissioner of the Department of Labor" (Ramos v. Patchogue-Medford School District, 73 AD3d 1010 [2010] quoting Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502). "To establish liability under Labor Law §241(6), a plaintiff must demonstrate that the defendant's violation of a specific rule or regulation was a proximate cause of the accident" (Ramos, supra., quoting Seaman v. Bellmore Fire Dist., 59 AD3d 515, 516 [2009]).
In support of his Labor Law §241(6) claim, LEE alleges that COSMAS violated the following provision of the Industrial Code: "[w]hen work is being performed from ladder rungs between 6-10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means" (12 NYCRR 23-1.21 (b)(4)(iv)). LEE does not claim that COSMAS violated any other specific safety rule or regulation.
COSMAS contends that the provision of the Industrial Code is irrelevant to this case because LEE fell from a four-foot A frame ladder as opposed to a "leaning ladder" and/or the provision contemplates heights between six to ten feet above the ladder footing. Accordingly, as there is no dispute between the parties that LEE fell from the third rung on a four-foot A- frame stepladder, the Industrial Code provision identified by LEE is not applicable to the facts of this case (see Rau v. Bagels N Brunch, Inc., 57 AD3d 866 [2008]).
Therefore, COSMAS is entitled to summary judgment dismissing plaintiff's cause of action to recover damages pursuant to Labor Law §241(6).
LABOR LAW §240(1)
"Labor Law 240(1) impose liability upon owners and contractors who violate the statute by failing to provide or erect necessary safety devices for the protection of workers exposed to elevation-related hazards, where such failure is a proximate cause of the accident was " (Henry v. Eleventh Avenue, L.P., 87 AD3d 523, 524, quoting Balzer v. City of New York, 61 AD3d 796, 797 [2009]). The statue "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (Rocovich v. Consolidated Edison Co., 78 NY2d 509). However, in order to "establish a prima facie violation of Labor Law §240(1), a plaintiff must demonstrate that the defendants violated the statute and the violation ws the proximate cause of his or her injuries" (Henry, supra., citations omitted).
LEE testified that he fell as he was attempting to pry and pull the electrical fixture from the wall. There is no evidence that anyone or anything was securing the A-frame ladder at the time of the accident or that COSMAS or CATELLO provided him with any safety devices or equipment. LEE also submits an Affidavit wherein he claims that the ladder "shifted slightly backwards but did not fall or collapse" when he fell. COSMAS provides the report of an engineer which concludes that LEE was negligent because the stepladder he used was adequate to complete the task of removing the fixture; that LEE used excessive force when he improperly removed the fixture; and/or that LEE ignored the warning affixed to the stepladder which directed LEE not to stand on the third rung as he was working.
However, on the facts presented, LEE has established his prima facie entitlement to summary judgment on the issue of Liability on his Labor Law §2401(1) as a result of his falling from an unsecured A-frame stepladder which "shifted" as he was removing the fixture (see, [*4]Gonzalez v. AMCC CORP., 88 AD3d 945 [2011], Durmiaki v. International Business Machines Corporation, 85 AD3d 960 [2011]).
Accordingly, it is
ORDERED that the portion of the motion for summary judgment by defendant COSMAS. to dismiss plaintiff LEE's causes of action pursuant to Labor Law §§200 and 241(6) is granted; and it is further
ORDERED that the portion of the motion for summary judgment by defendant COSMAS to dismiss plaintiff LEE's cause of action pursuant to Labor Law §240(1) is denied; and it is further
ORDERED that the portion of the motion for summary judgment by plaintiff LEE for summary judgment on the issue of liability of defendant COSMAS pursuant to Labor Law §240(1) is granted.
ORDERED that the Clerk enter Judgment accordingly.
This shall constitute the decision and order of the Court.
Dated: December 19, 2011
E N T E R,
/S/ Philip G. Minardo
HON. PHILIP G. MINARDO
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