Mata v. the Park Here Garage Corp..

• Citation: 71 A.D.3d 423,2010 N.Y. Slip Op. 01731,896 N.Y.S.2d 57
• Court: New York Supreme Court Appellate Division
• Decision Date: 04 March 2010
• Parties: Manuel MATA, Plaintiff–Appellant,v.The PARK HERE GARAGE CORP., et al., Defendants–Respondents.The Park Here Garage Corp., Third–Party Plaintiff–Respondent,v.Jonathan & Gabrielle Parking Inc., Third–Party Defendant–Respondent.[And a Second Third–Party Action].

71 A.D.3d 423
896 N.Y.S.2d 57
2010 N.Y. Slip Op. 01731

Manuel MATA, Plaintiff–Appellant,
v.
The PARK HERE GARAGE CORP., et al., Defendants–Respondents.The Park Here Garage Corp., Third–Party Plaintiff–Respondent,
v.
Jonathan & Gabrielle Parking Inc., Third–Party Defendant–Respondent.[And a Second Third–Party Action].

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

March 4, 2010.

[896 N.Y.S.2d 57]

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant.Law Offices of Cheng & Associates, PLLC, Long Island City (Pui Chi Cheng of counsel), for The Park Here Garage Corp., respondent.Cascone & Kluepfel, LLP, Garden City (Leonard M. Cascone of counsel), for Jonathan & Gabrielle Parking, Inc., respondent.TOM, J.P., NARDELLI, RENWICK, FREEDMAN, ROMÁN, JJ.

[71 A.D.3d 423] Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 23, 2008, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1) and granted defendants' cross motions for summary judgment dismissing the § 241(6) claim, modified, on the law, [71 A.D.3d 424] plaintiff's motion granted, the matter remanded

[896 N.Y.S.2d 58]

for assessment of damages, and otherwise affirmed, without costs.

Plaintiff, an independent contractor, was engaged to repair an inoperative rolling garage gate permanently affixed to a structure used as a commercial parking facility ( see Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813, 815, 523 N.Y.S.2d 432, 517 N.E.2d 1318 [1987] ). The work required the removal of a 300–pound tube-and-spring assembly from brackets securing it to the top of the garage entranceway, more than 10 feet above the ground. Plaintiff improvised a pulley system consisting of a length of chain draped over an upper rung of his own extension ladder and attached to the assembly. As plaintiff and his coworker were lowering the assembly, one end struck the ground, causing the ladder to move. Plaintiff, who was standing on the ladder, lost his balance and fell to the sidewalk below, fracturing his wrist.

Plaintiff's injury is “the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential,” in which “the harm flows directly from the application of the force of gravity to the object” ( Runner v. New York Stock Exch., 13 N.Y.3d 599, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009]; cf. Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ). Here, it is undisputed that plaintiff's work entailed the removal of a 300–pound assemblage comprising part of a metal gate and secured above the entranceway of a building or structure. For this type of work, Labor Law § 240(1) requires that a worker be provided with appropriate safety devices, as enumerated in that section, such as scaffolding or a hoist, hanger or pulley. The only safety device defendants made available was an A-frame ladder, and their failure to provide adequate safety devices under § 240(1) renders them liable for plaintiff's injuries as a matter of law ( Velasco v. Green–Wood Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004] ). Defendants do not explain how an A-frame ladder would have provided adequate protection. That plaintiff's improvisational use of his own extension ladder might be viewed as inappropriate is not material since a worker's contributory negligence does not bar recovery under § 240(1) ( see Bland v. Manocherian, 66 N.Y.2d 452, 459–460, 497 N.Y.S.2d 880, 488 N.E.2d 810 [1985]; Velasco, 8 A.D.3d at 89, 779 N.Y.S.2d 459; Hernandez v. 151 Sullivan Tenant Corp., 307 A.D.2d 207, 208, 762 N.Y.S.2d 603 [2003] ).

Labor Law § 241(6), however, is inapposite because plaintiff was not performing his work in the context of construction, demolition or excavation ( see Caban v. Maria Estela Houses I Assoc., L.P., 63 A.D.3d 639, 640, 882 N.Y.S.2d 97 [2009] ).

All concur except NARDELLI, J. who dissents in part in a memorandum as follows:NARDELLI, J. (dissenting in part)

I [71 A.D.3d 425] agree with the majority that plaintiff's claim under Labor Law § 241(6) should be dismissed, but cannot agree that plaintiff should be granted summary judgment on the § 240(1) claim. There are, I respectfully submit, questions of fact as to whether there was even a violation of the statute, and, even...