Clark v. Fox Meadow Builders Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MERCURE; CASEY; MERCURE
• Citation: Clark v. Fox Meadow Builders Inc., 624 N.Y.S.2d 685, 214 A.D.2d 882 (N.Y. App. Div. 1995)
• Decision Date: 20 April 1995
• Parties: James CLARK et al., Appellants, v. FOX MEADOW BUILDERS INC., Respondent. (And a Third-Party Action.)

Page 685

624 N.Y.S.2d 685

214 A.D.2d 882

James CLARK et al., Appellants, v. FOX MEADOW BUILDERS INC., Respondent (And a Third-Party Action.)

Supreme Court, Appellate Division Third Department.

April 20, 1995.

Keegan, Keegan & Associates (Barry R. Strutt, of counsel), White Plains, for appellants.

Francis J. Young P.C. (Francis J. Young, of counsel), Hartsdale, for respondent.

Hurley, Fox, Selig & Kelleher (Jeanne M. Hurley, of counsel), Stony Point, for White Plains Roofing & Siding Co., third-party defendant.

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

CASEY, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from that part of an order of the Supreme Court (Fredman, J.), entered May 24, 1993 in Westchester County, which denied plaintiffs' motion for summary judgment.

While employed by a roofing contractor, plaintiff James Clark (hereinafter plaintiff) was injured when he fell through an opening in the roof on which he was working. Plaintiff and his wife commenced this action for damages against defendant, the general contractor, alleging, inter alia, a violation of Labor Law § 240(1). Supreme Court denied plaintiffs' motion for summary judgment on the issue of liability raised by the Labor Law claim, resulting in this appeal. We agree with plaintiffs that Supreme Court erred in denying the motion.

Plaintiff's injury occurred while he and two co-workers were installing insulation board and rubber roofing on the roof deck. The opening through which plaintiff fell was one of six openings made in the roof deck by the general contractor to accommodate skylights. It is undisputed that before beginning to work on the roof on the day of plaintiff's accident, the roofers covered each of the openings with a piece of plywood. It is also undisputed that during the course of their installation of the insulation board, the roofers removed the plywood piece as they worked around each opening and then replaced the plywood when they were done. They were following the same procedure as they installed the rubber roofing on top of the insulation board. According to plaintiff's brother, who was one of the roofers, plaintiff removed the piece of plywood from one of the openings in preparation of installation of the rubber roofing. Plaintiff put the plywood down and then inadvertently stepped into the opening.

Supreme Court concluded that whether the plywood covers provided the proper protection required by Labor Law § 240(1) was a question of fact, as was the question of whether the statutory violation, if one occurred, was a proximate cause of plaintiff's injuries. We disagree.

Plaintiff's injuries were clearly the result of the type of elevation-related risk that Labor Law § 240(1) was intended to guard against (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932). It is equally clear that when plaintiff fell through the opening, there was no cover over the opening and no safety device was in place to protect plaintiff from the uncovered opening. These circumstances establish, as a matter of law, that Labor Law § 240(1) was violated (see, Flansburg v. Merritt Meridian Constr. Corp., 191 A.D.2d 756, 594 N.Y.S.2d 421; Linney v. Consistory of Bellvue Refm. Church, 115 A.D.2d 209, 495 N.Y.S.2d 293; compare, Petterson v. Museum Tower Corp., 151 A.D.2d 403, 543 N.Y.S.2d 435 [evidence that a barricade or railing around a roof opening was in place when the injured worker fell created a question of fact on the proper protection issue]. Assuming that the plywood cover constituted a safety device, "the availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures" (Conway v. New York State Teachers' Retirement Sys., 141 A.D.2d 957, 958-959, 530 N.Y.S.2d 300; accord, Rose v. Mount Ebo Assocs., 170 A.D.2d 766, 768, 565 N.Y.S.2d 578). The plywood cover may have provided proper protection while it was in place over the opening, but once it was removed plaintiff was exposed to an elevation-related risk which required additional precautionary measures or devices (see, Flansburg v. Merritt Meridian Constr. Corp., supra)....