King v. Villette, 2015-05681, 2015-09138, Index No. 13702/12.

• Decision Date: 01 November 2017
• Docket Number: 2015-05681, 2015-09138, Index No. 13702/12.
• Citation: 63 N.Y.S.3d 500,155 A.D.3d 619
• Parties: Franklin KING, et al., Appellants, v. Gerald VILLETTE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 619

63 N.Y.S.3d 500

Franklin KING, et al., Appellants,

v.Gerald VILLETTE, et al., Respondents.

2015-05681, 2015-09138, Index No. 13702/12.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 1, 2017.

The Yankowitz Law Firm, P.C. (Parker Waichman, LLP, Port Washington, NY [Jay L.T. Breakstone ], of counsel), for appellants.

Devitt Spellman Barrett, LLP, Smithtown, NY (Theodore D. Sklar of counsel), for respondents.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, and ANGELA G. IANNACCI, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated April 15, 2015, as granted those branches of the defendants ' motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), and denied their cross motion for summary judgment on the issue of liability on their cause of action alleging a violation of Labor Law § 240(1), and (2) from an order of the same court dated July 29, 2015, which denied their motion for leave to renew and/or reargue their prior cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and their opposition to those branches of the defendants' prior motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6).

ORDERED that the order dated April 15, 2015, is modified, on the law, by deleting the provisions thereof granting those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1), and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of Industrial Code ( 12 NYCRR) § 23–1.16, and substituting therefor provisions denying those branches of the motion; as so modified, the order dated April 15, 2015, is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from so much of the order dated July 29, 2015, as denied that branch of the plaintiffs' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Viola v. Blanco, 1 A.D.3d 506, 507, 767 N.Y.S.2d 248 ); and it is further,

ORDERED that the appeal from so much of the order dated July 29, 2015, as denied that branch of the plaintiffs' motion which was for leave to renew their opposition to those branches of the defendants' prior motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1), and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of Industrial Code ( 12 NYCRR) § 23–1.16, is dismissed as academic in light of our determination on the appeal from the order dated April 15, 2015; and it is further,

ORDERED that the order dated July 29, 2015, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiff Franklin King (hereinafter the injured plaintiff) allegedly fell and sustained injuries while performing stucco work on the back of a four-story, three-family residential building owned by the defendants. The injured plaintiff testified at his deposition that, after he had completed one day of work, the defendant Gerald Villette instructed him to remove a wooden scaffold that he had constructed and "finish the job fast," because a building inspector was coming. The injured plaintiff dismantled the scaffold and continued the work the following day by standing on a makeshift "scaffold" consisting of planks placed on a ladder that was laid horizontally across a fire escape and connected to the fire escape with wire. The ladder tipped over after the injured plaintiff placed a five-gallon container filled with stucco material on one end of it, and the injured plaintiff fell. Although the injured plaintiff was wearing a harness and safety line, the safety line was too long to prevent him from hitting the ground.

The injured plaintiff, and his wife suing derivatively, commenced this action, alleging, inter alia, common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendants moved for summary judgment dismissing the complaint, and the plaintiffs cross-moved for summary judgment on the issue of liability on their Labor Law § 240(1) cause of action. The Supreme Court granted those branches of the defendants' motion which were for summary judgment dismissing the plaintiffs' causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), and denied the plaintiffs' cross motion. The plaintiffs moved for leave to renew and/or reargue, and the court denied the motion. The plaintiffs appeal.

Under Labor Law § 240(1), owners and general contractors, and their agents, have a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites (see Ross v. Curtis Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82 ; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 512–513, 577 N.Y.S.2d 219, 583 N.E.2d 932 ; Cacanoski v. 35 Cedar Place Assoc., LLC, 147 A.D.3d 810, 811, 47 N.Y.S.3d 71 ). "In order to prevail on a claim under Labor Law § 240(1), a plaintiff must establish that the statute was violated and that this violation was a proximate cause of his or her injuries" ( Sprague v. Peckham Materials Corp., 240 A.D.2d 392, 393, 658 N.Y.S.2d 97 ; see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). No recovery is available under Labor Law § 240(1) when the plaintiff's actions were the sole proximate cause of the accident (see Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592 ; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39–40, 790 N.Y.S.2d 74, 823 N.E.2d 439 ; Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 ).

Here, the evidence submitted on the defendants' motion for summary judgment failed to establish, prima facie, that no statutory violation occurred, or that the alleged violation was not a proximate cause of the accident (see Norwood v. Whiting–Turner Contr. Co., 40 A.D.3d 718, 836 N.Y.S.2d 222 ). Therefore, the Supreme Court erred in granting the branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) (see Mata v. Park Here Garage Corp., 71 A.D.3d 423, 424, 896 N.Y.S.2d 57 ). Nevertheless, because the injured plaintiff provided conflicting accounts of how the accident occurred, the court properly denied the plaintiffs' cross motion for summary judgment on the issue of liability with respect to Labor Law § 240(1) (see Albino v. 221–223 W. 83 Owners Corp., 142 A.D.3d 799, 800–801, 37 N.Y.S.3d 113 ; Jones v. West 56th St. Assoc., 33 A.D.3d 551, 552, 825 N.Y.S.2d 182 ; Onorino v. Halmar Equities, 267 A.D.2d 286, 286–287, 699 N.Y.S.2d 899 ).

Labor Law § 200 codifies the common-law duty of an owner or contractor to provide workers with a reasonably safe place to work (see DeFelice v. Seakco Constr. Co., LLC, 150 A.D.3d 677, 678, 54 N.Y.S.3d 55 ; Bradley v. Morgan Stanley & Co., Inc., 21 A.D.3d 866, 868, 800 N.Y.S.2d 620 ). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a...