Ortiz v. Varsity Holdings, LLC
| Decision Date | 20 December 2011 |
| Citation | 2011 N.Y. Slip Op. 09161,960 N.E.2d 948,937 N.Y.S.2d 157,18 N.Y.3d 335 |
| Parties | Luis F. ORTIZ, Appellant, v. VARSITY HOLDINGS, LLC, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Law Office of Richard Paul Stone, New York City (Richard Paul Stone of counsel), and Law Offices of Albert Zafonte Jr. & Associates, Uniondale (Albert Zafonte Jr. of counsel), for appellant.
Rebore, Thorpe & Pisarello, P.C., Farmingdale (Timothy J. Dunn III and Michelle S. Russo of counsel), for respondents.
Fiedelman & McGaw, Jericho (Andrew Zajac and Dawn C. DeSimone of counsel), Rona L. Platt, Uniondale, Brendan T. Fitzpatrick, Albertson, and Julian Ehrlich, Jericho, for Defense Association of New York, Inc., amicus curiae.Nicholas I. Timko, New York City, David L. Scher and Brian J. Shoot, for New York State Trial Lawyers Association, amicus curiae.
Plaintiff Luis F. Ortiz was injured while engaged in demolition work at an apartment building being renovated in Brooklyn. The property was owned by defendant Varsity Holdings, LLC and managed by defendant Mag Realty Corp. Ortiz and his coworkers were taking debris from the building and placing it in a dumpster outside. According to Ortiz, the dumpster was about six feet high, eight feet wide, and 14 feet long. The ledge at the top of the dumpster was about eight inches in width.
After several hours of work, the dumpster was filling up, and Ortiz and his colleagues climbed up it, using footholds built into the side, and began to rearrange the debris inside to make more room. It started to rain, making the surface of the dumpster slippery. Ortiz was injured when, while holding a wooden beam and standing at the top of the dumpster, with at least one foot on the narrow ledge, he lost his balance and fell to the ground.*
Ortiz commenced this action, claiming violations of Labor Law §§ 200, 240(1), and § 241(6). Defendants moved for summary judgment as to all of plaintiff's Labor Law claims. Ortiz cross-moved for summary judgment on his Labor Law § 240(1) claim, insisting that defendants should have provided a scaffold to prevent his fall. In his affidavit in support of his cross motion and in opposition to defendants' motion, Ortiz stated that the task he was instructed to carry out required him to stand on the eight-inch ledge while placing heavy debris in open areas of the dumpster.
Supreme Court granted defendants' motion, and denied Ortiz's cross motion. On appeal, Ortiz challenged the dismissal of his section 240(1) cause of action, and the denial of his cross motion on that claim. The Appellate Division affirmed, simultaneously granting Ortiz leave to appeal to this Court and certifying the question whether its order was properly made (75 A.D.3d 538, 906 N.Y.S.2d 766 [2010] ). We now modify.
Defendants and amicus the Defense Association of New York argue that, as a matter of law, the task Ortiz was performing—loading a dumpster and rearranging the debris therein—did not create an elevation-related risk of the kind that the safety devices listed in Labor Law § 240(1) protect against. Defendants cite Toefer v. Long Is. R.R., 4 N.Y.3d 399, 795 N.Y.S.2d 511, 828 N.E.2d 614 (2005), noting our holding that “[a] four-to-five-foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers Labor Law § 240(1)'s coverage” ( id. at 408, 795 N.Y.S.2d 511, 828 N.E.2d 614).
[2] It is true that courts must take into account the practical differences between “the usual and ordinary dangers of a construction site, and ... the extraordinary elevation risks envisioned by Labor Law § 240(1)” ( id. at 407, 795 N.Y.S.2d 511, 828 N.E.2d 614, quoting Rodriguez v. Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843, 616 N.Y.S.2d 900, 640 N.E.2d 1134 [1994] ). A worker may reasonably be expected to protect himself by exercising due care in stepping down from a flatbed truck. However, the present case, with the facts considered in the light most favorable to the non-moving party, is distinguishable from Toefer. Ortiz's particular task of rearranging the demolition debris and placing additional debris in the dumpster, as he describes it, required him to stand at the top of the dumpster, six feet above the ground, with at least one foot perched on an eight-inch ledge. Moreover, defendants failed to adduce any evidence demonstrating that being in a precarious position such as this was not necessary to the task. Nor do defendants demonstrate that no safety device of the kind enumerated in section 240(1) would have prevented his fall.
On this record, therefore, we cannot say as a matter of law that equipment of the kind enumerated in section 240(1) was not necessary to guard plaintiff from the risk of falling from the top of the dumpster. Consequently, defendants have not demonstrated entitlement to summary judgment.
However, we agree with defendants that Ortiz's cross motion for summary judgment was properly denied. To recover under section 240(1), Ortiz must establish that he stood on or near...
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