Nazario v. 222 Broadway, LLC

• Decision Date: 14 January 2016
• Citation: 135 A.D.3d 506,23 N.Y.S.3d 192
• Parties: Justin NAZARIO, Plaintiff–Appellant, v. 222 BROADWAY, LLC, et al., Defendants–Respondents. 222 Broadway, LLC, et al., Third–Party Plaintiffs–Respondents, v. Knight Electrical Services Corp., Third–Party Defendant–Respondent–Appellant. [And Other Third–Party Actions].
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 506

23 N.Y.S.3d 192

Justin NAZARIO, Plaintiff–Appellant,

v.222 BROADWAY, LLC, et al., Defendants–Respondents.

222 Broadway, LLC, et al., Third–Party Plaintiffs–Respondents,

v.Knight Electrical Services Corp., Third–Party Defendant–Respondent–Appellant.

[And Other Third–Party Actions].

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

Jan. 14, 2016.

Arye, Lustig & Sassower, P.C., New York (D. Carl Lustig III of counsel), for appellant.

O'Connor Redd LLP, Port Chester, (Amy L. Feno of counsel), for respondent-appellant.

Lawrence, Worden, Rainis and Bard, P.C., Melville (Leslie McHugh of counsel), for 222 Broadway, LLC, and Jones Lang LaSalle Americas, Inc., respondents.

Cerussi & Spring, P.C., White Plains (Thomas F. Cerussi of counsel), for Lime Energy Co., respondent.

TOM, J.P., RENWICK, MOSKOWITZ, MANZANET–DANIELS, FEINMAN, JJ.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered April 7, 2014, which denied plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and, upon a search of the record, dismissed those claims, and granted defendants' motions for summary judgment on their contractual indemnification claims against third-party defendant, modified, on the law, to reinstate the Labor Law § 240(1) claim and grant plaintiff's motion for partial summary judgment on that claim, and to deny defendant 222 Broadway, LLC's (Broadway) motion for summary judgment on its contractual indemnification claim, and otherwise affirmed, without costs.

The motion court erred in dismissing the Labor Law § 240(1) claim on the ground that third-party defendant (Knight) exclusively supervised and controlled plaintiff's work. "[O]wners and contractors not actually involved in construction can be held liable, regardless of whether they exercise supervision or control over the work" (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 [2003] [internal quotation marks and citation omitted] ). Contrary to the motion court's reading of Blake, the duties of the owner and contractor cannot be delegated (id. at 286, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757 ).

Plaintiff established prima facie that the ladder from which he fell did not provide adequate protection pursuant to Labor Law § 240(1). The evidence, including testimony from disinterested coworkers, shows that plaintiff was performing electrical work as part of a retrofitting or renovation, and was reaching up while standing on the third or fourth rung of a six-foot A-frame wooden ladder, when he received an electric shock from an exposed wire. He fell to the floor, holding the ladder, which remained in an open, locked position when it landed (see Vukovich v. 1345 Fee, LLC, 61 A.D.3d 533, 878 N.Y.S.2d 15 [1st Dept.2009] [summary judgment granted on Labor Law § 240[1] claim, where plaintiff fell from an unsecured ladder after receiving electric shock while working as a pipe fitter] ). While, as our concurring colleague points out, the ladder itself may not have been defective, it is not a requirement that a worker injured by a fall from an elevated height demonstrate that the safety device was defective or failed to comply with safety regulations (see Williams v. 520 Madison Partnership, 38 A.D.3d 464, 465, 834 N.Y.S.2d 32 [1st Dept.2007], citing Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985] ). The worker's burden is to show that the absence of adequate safety devices, or the inadequacy of the safety devices provided to protect the worker from a fall, was a proximate cause of his or her injuries (see Smith v. Hooker Chem. & Plastics Corp., 70 N.Y.2d 994, 995, 526 N.Y.S.2d 424, 521 N.E.2d 431 [1988] [absence of any safety device]; Rodriguez v. Forest City Jay St. Assoc., 234 A.D.2d 68, 650 N.Y.S.2d 229 [1st Dept.1996] [inadequate safety device] ).

For instance, in Felker v. Corning, Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950 (1997), the Court analyzed two different elevation-related risks involved in the accident of a worker who, while painting an alcove area, fell from his ladder over an alcove wall and through a suspended ceiling. The first risk identified by the Court, the inherent risk caused by raising the worker to a height above the alcove wall, was sufficiently addressed by the defendants who provided a stepladder as an enumerated safety device, and there were no allegations that it "was defective, that it slipped, tipped, was placed improperly or otherwise failed to support plaintiff" (id. ). The second risk was that the worker needed to reach over the alcove to paint in an elevated open area; for this task, there was a "complete failure to provide any safety device," and there was no view of the evidence which could lead to the conclusion that the absence of a safety device, violating Labor Law § 240(1), was not the proximate cause of the accident (id. at 225, 660 N.Y.S.2d 349, 682 N.E.2d 950 ).

Blake v. Neighborhood Hous. Servs., as noted by our concurring colleague, cautions that a case brought under Labor Law § 240(1) must show both a statutory violation, which includes the failure to provide a sufficient safety device, and that the violation was a contributing factor to the injury (1 N.Y.3d at 289, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). The mere fact that a worker falls from a ladder or a scaffolding is not enough, by itself, to establish that the device did not provide sufficient protection (id. [citations omitted ] ). The worker must show that Labor Law § 240(1) was violated and the violation was a proximate cause of the injury (id. ). In Blake, the plaintiff injured his ankle when the upper portion of his extension ladder retracted while he was using it; he testified that the ladder was stable and in proper working condition, and that he was not sure he had locked the extension clips in place before he ascended (id. at 283, 284, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). Because the jury held that the ladder was adequate to have provided the necessary protection from a fall, the accident happened solely because of the way plaintiff used the ladder (id. at 284, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). The sole proximate cause of the accident was his negligence (id. at 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 ).

Where a plaintiff makes a prima facie showing that a sufficient safety device was not provided, and its absence was a contributing factor to the injury, the burden shifts to the defendant to show that there is a plausible view of the evidence that there was no statutory violation and that the plaintiff's own acts or omissions were the sole cause of the accident (Blake, at 289, fn. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757, citing Klein v. City of New York, 89 N.Y.2d 833, 835, 652 N.Y.S.2d 723, 675 N.E.2d 458 [1996] ).

Here, plaintiff was injured when he was jolted by the electrical charge and although he hung onto the ladder, because it was not secured to something stable, it and he fell to the ground (see Vukovich v. 1345 Fee, LLC, supra, 61 A.D.3d at 533, 878 N.Y.S.2d 15 ; Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 174, 780 N.Y.S.2d 558 [1st Dept.2004] ; Wasilewski v. Museum of Modern Art, 260 A.D.2d 271, 271, 688 N.Y.S.2d 547 [1st Dept.1999] ; see also Kijak v. 330 Madison Ave. Corp., 251 A.D.2d 152, 153, 675 N.Y.S.2d 341 [1st Dept.1998] ["well settled that failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240(1)"] ).¹ The lack of a secure ladder is a violation of Labor Law § 240(1), and is a proximate cause of the accident (see Wise v. 141 McDonald Ave., 297 A.D.2d 515, 516, 748 N.Y.S.2d 539 [1st Dept.2002] ).

Our conclusion follows the reasoning in Blake, and is in harmony with our decision in DelRosario v. United Nations Fed. Credit Union,

104 A.D.3d 515, 961 N.Y.S.2d 389 (1st Dept.2013), where we held that the ladder on which the plaintiff was working was inadequate to prevent him from falling when he was struck by a live electrical wire and, as he pulled away from the wire, the ladder "wobbled and moved" and caused him to lose his balance and fall (id. at 515, 961 N.Y.S.2d 389 ). In DelRosario, the inadequacy of the ladder was held to be a proximate cause of his injury (id. ). We therefore disagree with our concurring colleague that our holding in DelRosario has caused a split among the Appellate Divisions or deviates from the teachings of the Court of Appeals.

Defendants' arguments that plaintiff caused his own injuries by working on the fixture without protective gloves before the power supply was turned off could at most establish comparative negligence, which is not a defense to a Labor Law § 240(1) claim (see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556 [1993] ). Nor is there an issue of fact whether plaintiff's injuries were caused by a fall from a ladder. Notwithstanding that the records of plaintiff's visit to the emergency room refer merely to electrocution-related injuries without mentioning a fall from a ladder, and that plaintiff wrote on a medical form months later that his back injuries may have been caused by his lifting a machine and falling from a ladder, the evidence—which includes plaintiff's, his coworker's, and his foreman's testimony—that he sustained his injuries in falling from a ladder is overwhelming (see Susko v. 337 Greenwich LLC, 103 A.D.3d 434, 961 N.Y.S.2d 35 [1st Dept.2013] ).

Knight's argument that plaintiff was not engaged in a activity covered by Labor Law § 240(1) is unpreserved, and we decline to consider it. Contrary to Knight's contention, this "is not a purely legal issue apparent on the face of the record but requires for resolution facts not brought to plaintiff's attention on the motion" (Rodriguez v. Coalition for Father Duffy, LLC, 112 A.D.3d 407, 408, 976 N.Y.S.2d 51 [1st Dept.2013] [internal quotation marks...