Nicometi v. Vineyards of Fredonia, LLC

• Decision Date: 14 June 2013
• Citation: 2013 N.Y. Slip Op. 04473,107 A.D.3d 1537,967 N.Y.S.2d 563
• Parties: Marc A. NICOMETI, Plaintiff–Respondent, v. The VINEYARDS OF FREDONIA, LLC, Winter–Pfohl, INC., Defendants–Appellants, et al., Defendants. Scott Pfohl, et al., Third–Party Plaintiffs, v. Western New York Plumbing–Ellicott Plumbing and Remodeling Co., Inc., Third–Party Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1537

967 N.Y.S.2d 563

2013 N.Y. Slip Op. 04473

Marc A. NICOMETI, Plaintiff–Respondent,

v.The VINEYARDS OF FREDONIA, LLC, Winter–Pfohl, INC., Defendants–Appellants, et al., Defendants.

Scott Pfohl, et al., Third–Party Plaintiffs,

v.Western New York Plumbing–Ellicott Plumbing and Remodeling Co., Inc., Third–Party Defendant–Appellant.

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

June 14, 2013.

Kenney Shelton Liptak Nowak LLP, Buffalo (Robert D. Leary of Counsel), for Defendant–Appellant Winter–Pfohl, Inc.

Barth Sullivan Behr, Buffalo (Laurence D. Behr of Counsel), for Defendant–Appellant the Vineyards of Fredonia, LLC.

Baxter Smith & Shapiro, P.C., West Seneca (Louis B. Dingeldey, Jr., of Counsel), for Third–Party Defendant–Appellant.

The Ballow Law Firm, P.C., Buffalo (Jason A. Richman of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.

MEMORANDUM:

Plaintiff commenced this common-law negligence and Labor Law action seeking damages for injuries he sustained when he fell at a construction site. Plaintiff moved for partial summary judgment on the issue of liability with respect to the Labor Law § 240(1) claim, defendant Winter–Pfohl, Inc., cross-moved for, inter alia, summary judgment dismissing that claim against it, defendant The Vineyards of Fredonia, LLC (The Vineyards) opposed plaintiff's motion and also sought dismissal of the Labor Law § 240(1) claim, and third-party defendant opposed both the motion and the cross motion. The Vineyards, Winter–Pfohl, Inc., and third-party defendant (collectively, defendants) appeal from an order that, among other things, granted the motion and denied the cross motion.

Contrary to the contention of defendants, Supreme Court properly concluded that plaintiff's fall was the result of an elevation-related risk for which Labor Law § 240(1) provides protection. Plaintiff alleged that he fell when his stilts slipped on ice while he was installing insulation at an elevated level, i.e., the ceiling. It is well settled that “[t]he contemplated hazards [covered by the statute] are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” ( Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932). Here, the “risk was created by the need to elevate plaintiff to the height [of the ceiling], and the [stilts were] the ... safety device provided to protect the worker from the risk inherent in having to work at a height” ( Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950). Inasmuch as the stilts “failed while plaintiff was installing the [insulation on the ceiling]—work requiring the statute's special protections” ( Melber v. 6333 Main St., 91 N.Y.2d 759, 763–764, 676 N.Y.S.2d 104, 698 N.E.2d 933), the court properly concluded that the statute applies to plaintiff's section 240(1) claim. Consequently, the court properly denied the cross motion.

Nevertheless, we agree with defendants' further contention that the court erred in granting the motion because we conclude that there is a triable issue of fact whether plaintiff's actions were the sole proximate cause of his injuries. Although plaintiff met his initial burden on the motion ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572), defendants raised a triable issue of fact by introducing evidence that he was directed not to work in the area where the ice was located. Thus, “ ‘[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240(1), here there is a question of fact [concerning] whether the injured plaintiff's fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries' ” ( Thome v. Benchmark Main Tr. Assoc., LLC, 86 A.D.3d 938, 940, 927 N.Y.S.2d 260). We therefore modify the order accordingly.

We have considered defendants' remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from is modified on the law by denying plaintiff's motion and as modified the order is affirmed without costs.

All concur except FAHEY and WHALEN, JJ., who dissent and vote to affirm in the following Memorandum:

We respectfully dissent. We agree with the majority that Supreme Court properly concluded that plaintiff is a covered worker under Labor Law § 240(1). We cannot agree with the majority, however, that there is a triable issue of fact whether plaintiff's conduct was the sole proximate cause of the accident. We therefore conclude that the court properly granted plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1) and would affirm.

This action arises out of an accident that occurred as plaintiff worked from stilts to install insulation on a ceiling at an apartment complex. The stilts were set in such a way that the bottoms of plaintiff's feet were between three and five feet off of the floor. Plaintiff and plaintiff's supervisor (supervisor) both testified at their depositions that they saw ice on the floor of the area in which plaintiff was working, and the supervisor recalled that the ice covered approximately a four-foot by four-foot area and was not more than one-eighth of an inch thick. Although, in his words, the ice was “clear like water,” the supervisor merely told plaintiff “not to be in that area,” and took no measures to protect plaintiff from that hazard. Indeed, despite the fact that plaintiff's work required plaintiff to look up and away from the floor to complete his assigned task, the supervisor did not guard the ice with caution tape, barricades or similar devices, and thus left plaintiff unprotected from that hazard.

As the majority notes, plaintiff alleges that he fell when the stilts slipped on the ice while he was working. We respectfully disagree with the majority that there is an issue of fact whether plaintiff's...