Kuhn v. Camelot Ass'n Inc.

• Decision Date: 25 March 2011
• Citation: Kuhn v. Camelot Ass'n Inc., 82 A.D.3d 1704, 919 N.Y.S.2d 684, 2011 N.Y. Slip Op. 2299 (N.Y. App. Div. 2011)
• Parties: James C. KUHN, Plaintiff–Respondent,v.CAMELOT ASSOCIATION, INC., Defendant–Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1704

919 N.Y.S.2d 684

2011 N.Y. Slip Op. 02299

James C. KUHN, Plaintiff–Respondent,

v.CAMELOT ASSOCIATION, INC., Defendant–Appellant. (Appeal No. 2.)

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

March 25, 2011.

Augello & Matteliano, LLP, Buffalo (Joseph A. Matteliano of Counsel), for Defendant–Appellant.Burgett & Robbins LLP, Jamestown (Mary Speedy Hajdu of Counsel), for Plaintiff–Respondent.PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained while working on the roof of a building owned by defendant.According to plaintiff, who was employed by nonparty Watkins Builders, Inc.(Watkins Builders) at the time of the accident, he stepped from the roof onto an elevated platform attached to a Gradall forklift (hereafter, forklift), and the forklift tipped over, causing him to fall to the ground.Supreme Court granted plaintiff's motion for partial summary judgment on liability with respect to the Labor Law § 240(1) claim and denied defendant's cross motion for summary judgment dismissing the amended complaint.The court subsequently granted defendant's motion for leave to reargue its opposition to the motion and for leave to reargue its cross motion and, upon reargument, the court adhered to its prior decision.We affirm.

We reject at the outset the contention of defendant that plaintiff's motion was premature pursuant to CPLR 3212(f).Even assuming, arguendo, that “facts essential to justify opposition” to the motion could be gleaned from depositions of employees of Watkins Builders (CPLR 3212[f] ), we conclude that defendant failed to demonstrate that such information was within plaintiff's “ ‘exclusive knowledge and possession’ ”( Wright v. Shapiro,16 A.D.3d 1042, 1043, 791 N.Y.S.2d 799;cf.Terranova v. Emil,20 N.Y.2d 493, 497, 285 N.Y.S.2d 51, 231 N.E.2d 753).Moreover, defendant failed to establish that it could not have deposed the nonparty witnesses during the approximately two-year period between the commencement of the action and plaintiff's motion ( seeGuarino v. Mohawk Containers Co.,59 N.Y.2d 753, 463 N.Y.S.2d 433, 450 N.E.2d 239;Avraham v. Allied Realty Corp.,8 A.D.3d 1079, 778 N.Y.S.2d 648;Witte v. Incorporated Vil. of Port Washington N.,114 A.D.2d 359, 493 N.Y.S.2d 879).

With respect to the merits, we conclude that plaintiff met his initial burden on the motion by establishing that he“was not furnished with the requisite safety devices and that the absence of appropriate safety devices was a proximate cause of his injuries”( Williams v. City of Niagara Falls,43 A.D.3d 1426, 1427, 843 N.Y.S.2d 902;seeFelker v. Corning Inc.,90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950;Ganger v. Anthony Cimato/ACP Partnership,53 A.D.3d 1051, 1052, 862 N.Y.S.2d 678).In opposition to the motion, defendant failed to raise a triable issue of fact whether plaintiff's “own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident”( Cahill v. Triborough Bridge & Tunnel Auth.,4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439).Although defendant contends that plaintiff should have utilized a ladder as a safety device, it presented no evidence that plaintiff had been instructed to use a ladder or that plaintiff knew or should have known to use a ladder “ ‘based on his training, prior practice[ ] and common sense’ ”( Ganger,53 A.D.3d at 1053, 862 N.Y.S.2d 678;seeEwing v. Brunner Intl., Inc.,60 A.D.3d 1323, 875 N.Y.S.2d 388).The owner of Watkins Builders summarily asserted in an affidavit that “all employees knew” not to use the forklift to transport personnel, but he did not aver that he or anyone else instructed plaintiff to avoid using the forklift in that manner.Indeed, there is no evidence that plaintiff“received specific instructions to use a [ladder rather than the forklift] while [ascending and descending the roof] and chose to disregard those instructions”( Cahill,4 N.Y.3d at 39, 790 N.Y.S.2d 74, 823 N.E.2d 439).To the contrary, the deposition testimony of plaintiff and his coworkers established that the forklift was provided to them at the job site and that it had been used to transport workers, as well as materials, during the weeks prior to plaintiff's accident.Further, it is undisputed that plaintiff's foremen observed, facilitated and participated in the use of the forklift for the transport of workers ( see generallyRico–Castro v. Do & Co. N.Y. Catering, Inc.,60 A.D.3d 749, 750, 874 N.Y.S.2d 576;Pichardo v. Aurora Contrs., Inc.,29 A.D.3d 879, 880–881, 815 N.Y.S.2d 263).Indeed, one of the foremen, who had previously worked out of the forklift at an elevated height, had placed the forklift adjacent to the roof where plaintiff was working, and that foreman was operating the forklift at the time of the accident.The other foreman was on the roof with plaintiff when plaintiff used the forklift to descend therefrom.Thus, inasmuch as the forklift was furnished by plaintiff's employer and its use as an alternative safety device for transporting personnel was approved by plaintiff's supervisors, it cannot be said that plaintiff's decision to use the forklift rather than the ladder to descend from the roof is the sole proximate cause of the accident ( see generallyCahill,4 N.Y.3d at 39, 790 N.Y.S.2d 74, 823 N.E.2d 439;Blake v. Neighborhood Hous. Servs. of N.Y. City,1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757;Evans v. Syracuse Model Neighborhood Corp.,53 A.D.3d 1135, 1137, 862 N.Y.S.2d 425).

It is hereby ORDERED that the order so appealed from is affirmed without costs.All concur except SMITH, J.P., and CARNI, J., who dissent in part and vote to modify in accordance with the following Memorandum:

We respectfully dissent in part.In our view, Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability with respect to the Labor Law § 240(1) claim upon granting defendant's motion for leave to reargue, inter alia, its opposition to plaintiff's motion.Defendant raised a triable issue of fact whether plaintiff's own conduct was the sole proximate cause of his injuries.The record establishes that, on the date of his accident, plaintiff was employed by nonparty Watkins Builders, Inc.(Watkins Builders) to perform roofing...