Beesimer v. Albany Avenue/Route 9 Realty, Inc.

• Decision Date: 29 June 1995
• Citation: 629 N.Y.S.2d 816,216 A.D.2d 853
• Parties: Thomas D. BEESIMER et al., Respondents, v. ALBANY AVENUE/ROUTE 9 REALTY, INC., Defendant, and Barry, Bette & Led Duke, Inc., Appellant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 816

629 N.Y.S.2d 816

216 A.D.2d 853

Thomas D. BEESIMER et al., Respondents, v. ALBANY AVENUE/ROUTE 9 REALTY, INC., Defendant, and Barry, Bette & Led Duke, Inc., Appellant. (And a Third-Party Action.)

Supreme Court, Appellate Division,

Third Department.

June 29, 1995.

Carter, Conboy, Case, Blackmore, Napierski & Maloney P.C. (Nancy E. May-Skinner, of counsel), Albany, for appellant.

Edward J. Carroll (Beatrice Havranek of Counsel), Kingston, for Thomas D. Beesimer respondent.

Hurley, Fox, Selig & Kelleher (Jeanne M. Hurley, of counsel), Stoney Point, for third-party defendant.

Before MERCURE, J.P., and CREW, WHITE, CASEY and SPAIN, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court (Torraca, J.), entered March 21, 1994 in Ulster County, which, inter alia, granted plaintiffs' motion for partial summary judgment on the issue of liability.

Plaintiff Thomas D. Beesimer (hereinafter Beesimer), an employee of a mason subcontractor, was injured during his work at a jobsite while on a scaffold. Alleging negligence and a violation of Labor Law § 240, Beesimer and his wife commenced this action to recover damages from the owner and the general contractor. Plaintiffs' motion for partial summary judgment on the issue of liability was granted, resulting in this appeal by the general contractor, defendant Barry, Bette & Led Duke, Inc. (hereinafter defendant).

It is unclear from the record whether Supreme Court granted plaintiffs' motion on the basis of the negligence theory or the Labor Law § 240 theory or both. Inasmuch as there are clearly questions of fact regarding the negligence theory, we will focus on the cause of action which alleges a violation of Labor Law § 240. According to Beesimer, he slipped on some wet cement on the surface of the scaffolding. One or both of his feet went off the edge of the scaffold as a result of the slip, but he was able to grab onto a section of the scaffold as he fell, and he pulled himself back onto the surface of the scaffold. As a result, Beesimer claims to have sustained permanent injuries to his back.

This is not a case where no safety devices were provided to protect Beesimer from an elevation-related risk, which would establish a violation of Labor Law § 240 as a matter of law (see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898). Beesimer was provided with scaffolding, which is a safety device enumerated in Labor Law § 240(1). The rule in this Department is that when a worker injured in a fall was provided with an elevation-related safety device, the question of whether the device provided proper protection within the meaning of Labor Law § 240(1) is ordinarily a question of fact (see, Garhartt v. Niagara Mohawk Power Corp., 192 A.D.2d 1027, 1029, 596 N.Y.S.2d 946; Russell v. Rensselaer Polytechnic Inst., 160 A.D.2d 1215, 1216, 555 N.Y.S.2d 480; Blair v. Rosen-Michaels, Inc., 146 A.D.2d 863, 865, 536 N.Y.S.2d 577), except where the device collapses, slips or otherwise fails to perform its function of supporting the workers and their materials (see, Dennis v. Beltrone Constr. Co., 195 A.D.2d 688, 689, 599 N.Y.S.2d 723; Davis v. Pizzagalli Constr. Co., 186 A.D.2d 960, 961, 589 N.Y.S.2d 211; Drew v. Correct Mfg. Corp., Hughes-Keenan Div., 149 A.D.2d 893, 894-895, 540 N.Y.S.2d 575). An exception is also recognized where an existing safety device is removed prior to a worker's fall (see, Clark v. Fox Meadow Bldrs., 214 A.D.2d 882, 624 N.Y.S.2d 685). Thus, although the Fourth Department appears to have adopted a contrary rule (see, Shamir v. Farash Corp., 210 A.D.2d 882, 620 N.Y.S.2d 643; Hodge v. Crouse Hinds Div. of Cooper Indus., 207 A.D.2d 1007, 616 N.Y.S.2d 822), the mere fact that Beesimer fell off the scaffolding surface is insufficient, in and of itself, to establish that the device did not provide proper protection (see, Springer v. Clark Publ. Co., 171 A.D.2d 914, 915, 566 N.Y.S.2d 972). ¹

Plaintiffs contend that the scaffolding failed to comply with Labor Law § 240(2) which requires safety rails on scaffolding which is more than 20 feet from the ground. Although plaintiffs claim to have presented undisputed testimony that the height of the scaffolding exceeded 20 feet, Beesimer's examination before trial includes testimony that he fell from the third stage of the scaffolding and that each stage was 6 to 8 feet high, which would make the third stage 18 to 24 feet above the ground. There is also evidence in the record that the wall for which the scaffolding had been erected was less than 20 feet high. Accordingly, a question of fact exists as to whether Labor Law § 240(2) was violated.

When a worker is injured in a fall of less than 20 feet, the absence of safety rails on the scaffolding from which he fell is relevant to the question of whether the scaffold provided the proper protection required by Labor Law § 240(1) (Wright v. State of New York, 110 A.D.2d 1060, 1061, 488 N.Y.S.2d 917, aff'd 66 N.Y.2d 452, 497 N.Y.S.2d 880, 488 N.E.2d 810). It is our view, however, that where, as here, there is no evidence that the scaffolding was defective or otherwise failed to perform its function of elevating the workers and their material, the question of whether safety rails were necessary to provide the proper protection required by Labor Law § 240(1) is generally a question of fact to be decided on the facts and circumstances of the particular case (see, id.; see also, Blair v. Rosen-Michaels, Inc., 146 A.D.2d 863, 536 N.Y.S.2d 577, supra; but see, Cartella v. Strong Museum, 135 A.D.2d 1089, 523 N.Y.S.2d 308). Accordingly, there is a factual issue as to whether Labor Law § 240(1) was violated.

Beesimer also bore the burden of establishing that the claimed violation of Labor Law § 240 was a proximate cause of...