Nicometi v. Vineyards of Fredonia, LLC
| Citation | 30 N.E.3d 154,25 N.Y.3d 90,7 N.Y.S.3d 263,2015 N.Y. Slip Op. 02801 |
| Parties | Marc A. NICOMETI, Appellant–Respondent, v. THE VINEYARDS OF FREDONIA, LLC, et al., Respondents–Appellants, et al., Defendants. Scott Pfohl, Third–Party Plaintiff, and Winter–Pfohl, Inc., Third–Party Plaintiff–Respondent–Appellant, v. Western New York Plumbing–Ellicott Plumbing and Remodeling Co., Inc., Third–Party Defendant–Respondent–Appellant. |
| Decision Date | 02 April 2015 |
| Court | New York Court of Appeals |
25 N.Y.3d 90
30 N.E.3d 154
7 N.Y.S.3d 263
2015 N.Y. Slip Op. 02801
Marc A. NICOMETI, Appellant–Respondent
v.
THE VINEYARDS OF FREDONIA, LLC, et al., Respondents–Appellants, et al., Defendants.
Scott Pfohl, Third–Party Plaintiff
and
Winter–Pfohl, Inc., Third–Party Plaintiff–Respondent–Appellant
v.
Western New York Plumbing–Ellicott Plumbing and Remodeling Co., Inc., Third–Party Defendant–Respondent–Appellant.
Court of Appeals of New York.
April 2, 2015.
Michael J. Hutter, Jr., Albany, and The Ballow Law Firm, P.C., Buffalo (John E. Ballow and Jason A. Richman of counsel), for appellant-respondent.
Kennedy Shelton Liptak Nowak LLP, Buffalo (Robert D. Leary of counsel), for Winter–Pfohl, Inc., respondent-appellant.
Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for The Vineyards of Fredonia, LLC, respondent-appellant.
Baxter Smith & Shapiro, P.C., West Seneca (Arthur J. Smith, Sim R. Shapiro and Michael V. McLaughlin of counsel), for Western New York Plumbing–Ellicott Plumbing and Remodeling Co., Inc., third-party respondent-appellant.
OPINION OF THE COURT
STEIN, J.
In this personal injury action, we are called upon to determine whether Labor Law § 240(1) applies where plaintiff sustained injuries after he slipped on ice and fell to the floor while using stilts to install insulation in a ceiling. Because we
conclude that plaintiff's accident does not fit within the ambit of Labor Law § 240(1), we modify the Appellate Division order on that ground.
I.
One morning in January 2006, plaintiff Marc Nicometi, a construction worker, was installing insulation in the ceilings of a newly constructed apartment building development in the Village of Fredonia. Defendant The Vineyards of Fredonia, LLC owned the premises upon which plaintiff was working. The Vineyards was, in turn, co-owned by defendant Thomas Whitney and certain nonparties. The Vineyards hired defendant Winter–Pfohl, Inc., partially
owned by defendant Scott Pfohl, as the general contractor for the construction project. Winter–Pfohl subcontracted the insulation work to plaintiff's employer, 84 Lumber.
To complete his installation task, plaintiff wore stilts that elevated his feet above the concrete floor in order for him to reach the 9– to 10–foot–high ceiling.1 According to plaintiff, the accident occurred when he stepped forward with one foot, while swinging a hammer tacker above his head to affix insulation between the ceiling rafters, and slipped on a thin patch of ice. Plaintiff testified at his deposition that, prior to falling, he was aware that ice and water had accumulated on parts of the floor, and he claimed to have so informed his supervisor, Raymond Hilliker. Plaintiff asserted that Hilliker instructed him to complete the installation despite the presence of ice. Hilliker, by contrast, testified that he—not plaintiff—first noticed the ice, and that he directed plaintiff not to insulate the ceiling above the icy area.
Plaintiff subsequently commenced this action, asserting common-law negligence and Labor Law §§ 200, 240(1) and 241(6) claims against each aforementioned defendant. Winter–Pfohl and Scott Pfohl later commenced a third-party action seeking indemnification or contribution from Western New York Plumbing–Ellicott Plumbing and Remodeling Co., Inc., the
plumbing subcontractor that worked on the premises. Following discovery, plaintiff moved for partial summary judgment on liability with respect to his Labor Law § 240(1) cause of action. Winter–Pfohl and Scott Pfohl cross-moved for summary judgment dismissing plaintiff's section 240(1) claim against Winter–Pfohl and the action in its entirety as asserted against Scott Pfohl, individually. In support of its cross motion, Winter–Pfohl argued that plaintiff was not entitled to the protections of section 240(1) because his injuries were caused by ice, not an elevation-related hazard. Although The Vineyards and Whitney opposed plaintiff's motion and supported Winter–Pfohl's cross motion, they did not cross-move for summary judgment. Western New York Plumbing opposed all pending motions as premature.
Supreme Court granted plaintiff summary judgment with regard to liability on the Labor Law § 240(1) claim as against The Vineyards and Winter–Pfohl, denied Winter–Pfohl's cross motion seeking dismissal of same, and granted Scott Pfohl's cross motion, thereby dismissing him from the action completely.2 In so holding, Supreme Court determined that section 240(1) applied because plaintiff's accident resulted from an elevation-related risk as contemplated by the statute. The court further concluded that no questions of fact existed regarding whether plaintiff's actions were the sole proximate cause of his injuries, despite Hilliker's alleged instruction that plaintiff refrain from insulating the ceiling above the ice. The Vineyards, Winter–Pfohl, and Western New York Plumbing (collectively, defendants) appealed
each contending that Labor Law § 240(1) did not apply.
The Appellate Division, with two Justices dissenting, modified Supreme Court's order by denying plaintiff's motion for partial summary judgment and, as so modified, affirmed (107 A.D.3d 1537, 1538, 967 N.Y.S.2d 563 [4th Dept.2013] ). The Appellate Division majority and dissent agreed that Labor Law § 240(1) covered plaintiff's accident (see id. at 1538–1539, 967 N.Y.S.2d 563 ). The Court reasoned that the accident implicated section 240(1) because the stilts elevating plaintiff “ ‘failed’ ” as he performed the insulation work, and it therefore concluded that Winter–Pfohl's cross motion for partial summary judgment was properly denied (
id. at 1538, 967 N.Y.S.2d 563, quoting Melber v. 6333 Main St., 91 N.Y.2d 759, 763–764, 676 N.Y.S.2d 104, 698 N.E.2d 933 [1998] ). The Court split, however, on the issue of proximate cause, with the majority holding that questions of fact existed regarding whether plaintiff's actions were the sole proximate cause of his injuries (see 107 A.D.3d at 1539, 967 N.Y.S.2d 563 ), and the dissent positing that plaintiff was entitled to summary judgment in his favor (see id. at 1539–1541, 967 N.Y.S.2d 563 ).
The Appellate Division granted defendants and plaintiff leave to appeal and cross-appeal, certifying the question whether its order was properly made (109 A.D.3d 1220, 972 N.Y.S.2d 140 [4th Dept.2013] ). For the reasons that follow, we answer the certified question in the negative, and modify the Appellate Division order accordingly.
II.
Defendants argue that the courts below erred in holding that Labor Law § 240(1) applies here. According to defendants, plaintiff's accident was not the result of an elevation-related risk but, rather, was the result of an ordinary construction site danger—the presence of ice—which is not the type of injury covered by the statute. Defendants contend that our resolution of this appeal is controlled by our rejection of section 240(1) liability in Melber v. 6333 Main St., 91 N.Y.2d 759, 676 N.Y.S.2d 104, 698 N.E.2d 933 (1998), which they claim is virtually indistinguishable. We agree.
Pursuant to Labor Law § 240(1), owners and contractors engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” except certain owners of one- and two-family dwellings, must “furnish or erect ... scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person” employed in the performance of such labor. Section 240(1) aims to “protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ; see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985] ). To achieve that goal, the statute “imposes absolute liability where the failure to provide [proper] protection is a proximate cause of a worker's injury” (Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662, 985 N.Y.S.2d 416, 8 N.E.3d 791 [2014] ; see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011] ).
Nevertheless, it is settled that “the extraordinary protections of the statute in the first instance apply only to a narrow class
of dangers” (Melber, 91 N.Y.2d at 762, 676 N.Y.S.2d 104, 698 N.E.2d 933 ; see Cohen v. Memorial Sloan–Kettering Cancer
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