Loretta v. Split Dev. Corp.

• Decision Date: 16 January 2019
• Docket Number: Index No. 62670/13,2016–10528
• Citation: 92 N.Y.S.3d 92,168 A.D.3d 823
• Parties: Vincent LORETTA, et al., appellants, v. SPLIT DEVELOPMENT CORP., respondent.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 823

92 N.Y.S.3d 92

Vincent LORETTA, et al., appellants,

v.SPLIT DEVELOPMENT CORP., respondent.

2016–10528

Index No. 62670/13

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

Argued—September 24, 2018

January 16, 2019

Ronald K. Friedman, Esq., PLLC, Fishkill, N.Y. (Thomas Torto of counsel), for appellants.

McMahon & McCarthy, Bronx, N.Y. (Matthew J. McMahon of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Lester A. Adler, J.), dated September 9, 2016. The judgment, upon a jury verdict in favor of the defendant on the issue of liability, and upon the denial of the plaintiffs' motion pursuant to CPLR 4404(a) to set aside the verdict, is in favor of the defendant and against the plaintiffs dismissing the fourth amended complaint.

ORDERED that the judgment is affirmed, with costs.

In 2012, the plaintiff Vincent Loretta was installing plumbing waste pipes in the garage of a single-family home that was being constructed by the defendant Split Development Corp. Loretta alleges that he fell from a 10–foot A-frame ladder while he was attempting to insert a vertical pipe into the elbow of a horizontal pipe that he had previously installed in the garage's 13–foot–high ceiling. Loretta, and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries Loretta allegedly sustained in the accident.

The plaintiffs moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The defendant cross-moved for summary judgment dismissing the fourth amended complaint. The Supreme Court denied the motion and the cross motion on the ground that there remained triable issues of fact. After a trial on the issue of liability, the jury returned a verdict finding that the ladder furnished to Loretta was adequate to protect him from the hazards inherent in the performance of the plumbing work he was undertaking at the time of his accident. The plaintiffs moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The court denied the plaintiffs' motion and subsequently entered a judgment dismissing the fourth amended complaint. The plaintiffs appeal.

The plaintiffs argue that the Supreme Court should have granted their motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). " ‘ Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites’ " ( Corchado v. 5030 Broadway Props., LLC, 103 A.D.3d 768, 768, 962 N.Y.S.2d 185, quoting McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 ). "To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries" ( Nunez v. City of New York, 100 A.D.3d 724, 724, 954 N.Y.S.2d 163 [internal quotation marks omitted] ). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)" ( Treu v. Cappelletti, 71 A.D.3d 994, 997, 897 N.Y.S.2d 199 ; see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 288, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). Accordingly, a "fall from a scaffold or ladder, in and of itself," does not result "in an award of damages to the injured party" ( Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d at 288, 771 N.Y.S.2d 484, 803 N.E.2d 757 ).

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) by submitting evidence that the ladder toppled over as Loretta was pushing and twisting the vertical pipe into the elbow of the horizontal pipe, and that the failure to provide Loretta with an adequate safety device proximately caused his injuries (see Corchado v. 5030 Broadway Props., LLC, 103 A.D.3d at 769, 962 N.Y.S.2d 185 ; Robinson v. Goldman Sachs Headquarters, LLC, 95 A.D.3d 1096, 1097, 944 N.Y.S.2d 630 ). However, in opposition, the defendant raised triable issues of fact regarding the manner in which the accident occurred (see Corchado v. 5030 Broadway Props., LLC, 103 A.D.3d at 769, 962 N.Y.S.2d 185 ; Robinson v. Goldman Sachs Headquarters, LLC, 95 A.D.3d at 1097–1098, 944 N.Y.S.2d 630 ). Accordingly, we agree with the Supreme Court's determination to deny the plaintiffs' motion for summary judgment, as there were triable issues of fact regarding whether the ladder provided adequate protection to Loretta and, if not, whether the ladder's failure to provide adequate protection was a proximate cause of Loretta's injuries (see Esquivel v. 2707 Creston Realty, LLC, 149 A.D.3d 1040, 1041, 52 N.Y.S.3d 484 ; Daley v. 250 Park Ave., LLC, 126 A.D.3d 747, 749, 5 N.Y.S.3d 267 ; Nunez v. City of New York, 100 A.D.3d at 725, 954 N.Y.S.2d 163 ).

The plaintiffs further argue that the Supreme Court erred in denying that branch of their motion pursuant to CPLR 4404(a)which was to set aside the verdict and for judgment as a matter of law because there was no evidence from which the jury could...